Will courts be willing to “settle” Ted Cruz’s eligibility?

Will courts be willing to “settle” Ted Cruz’s eligibility?

Professor Jacobson has opined on the question of whether Ted Cruz qualifies to be president as a “natural born citizen.” The short answer is: he definitely does. However, as Professor Jacobson also indicated, that hasn’t stopped Trump from attempting to foster doubts in voters’ minds about it.

You can see the results in the increased amount of chatter about the issue—which is likely to have been exactly what Trump wanted when he put forward his oh-so-helpful suggestion that Ted Cruz could and should settle the “natural born citizen” question by going to federal court and seeking a declaratory judgment on the matter.

So, why doesn’t Cruz do what Trump has suggested, and put it to rest? The reason is that it is almost certain that Cruz couldn’t get a court to rule on the issue. J. Christian Adams, who was in the Justice Department under George W. Bush, explains why:

First, court cases require a real case or controversy. Without it, courts do not have jurisdiction to hear a case. The term “case or controversy” mean more than “Donald Trump thinks there is a case or controversy.” It means a genuine clash of interests is occurring…

Second, who would have standing to bring the Cruz declaratory judgment case?

…If a plaintiff in a federal court case has not suffered an injury of some sort, the court has no authority to hear the matter and meddle in the affairs of American citizens…Cruz has suffered no injury. He is on the ballot, not off…

Standing cannot be had because there might be a speculative injury in the future. Speculative injuries are not yet “ripe.”…

Finally, who would be the defendant…Trump himself? The news media? Fox Business Network?…The bottom line is that there is no defendant injuring Ted Cruz over Trump’s legally flawed birther attack.

But, as Jonah Goldberg has pointed out in National Review, it is very possible that Trump himself doesn’t really care about the legal constitutional issue itself. However, insinuating that Cruz could and should seek a declaratory judgment may cause listeners to question Cruz’s eligibility and to ask why he doesn’t just seek such a judgment to settle the issue.

Sure enough, a suit has already been filed, right on schedule—although not by Cruz. Here’s more about that suit:

Peter Spiro, a law professor at Temple University who reviewed the filing, noted that…the probability [is] that [the plaintiff] Mr. Schwartz does not have legal standing to bring such a case against Mr. Cruz.

The issue [of “natural born citizen”] has not been decided by the courts because most lawyers think it would require a presidential candidate, or an opponent of one who can claim “injury,” for courts to consider the merits of the case…

According to Mr. Spiro…the most realistic situation that would bring legal clarity would be for Mr. Cruz to file a lawsuit in the event that a state elections commissioner decided to take him off the ballot because of his Canadian roots. The suggestion that Mr. Trump has made, urging Mr. Cruz to seek a “declaratory judgment,” is also unrealistic, Mr. Spiro said, because courts do not offer such guidance unless there is an active case.

“There’s zero chance of a court getting to the merits on this claim,” Mr. Spiro said. “If Trump wants to put his money where his mouth is, he should be the one filing for a declaratory judgment against state election commissioners who put Cruz’s name on the ballot.”

So it’s Trump (and/or the other Republican candidates running against Cruz) who might have standing at this point, not Cruz or anyone else. George Stephanopoulos seems to have done his homework on this, because he brought it up yesterday during his interview with Trump on ABC:

Stephanopoulos then said, “But you know, the person who sued [Cruz] probably doesn’t have standing, a lot of legal scholars–.” Trump interrupted, saying, “That’s all right. There will be a lot of people who sue him who do have standing.”

“Say you have standing, why don’t you file the case,” Stephanopoulos asked. Trump responded, “Oh that’s an interesting case. Wow that sounds like a very good case. I’d do the public a big favor.”

Note that Trump doesn’t say who this “lot” of people who will sue Cruz “who do have standing” might be.

Show of hands—does anyone think Trump will actually file for a declaratory judgment? It’s possible, I suppose. But in terms of tactics, it would probably be much better for Trump to keep the issue unsettled than to discover that Cruz is a natural born citizen after all.

If Trump were to try to actually sue, however, he might discover that, even if Trump is found to have standing (which is by no means certain), the courts might be very reluctant to get into the issue at all, and that they would rather leave the question to the electoral process or to Congress.

This article by election law expert Derek Muller analyzes the legal and policy considerations behind judicial reluctance to rule on such issues. Muller also indicates that the possibility that a state election official might take Cruz off the ballot and thus give Cruz a cause of action to file a suit is highly unlikely because states tend to be hesitant to take such steps.

Muller writes that both the states and the courts have tended to defer to three other bodies to decide on whether a candidate is eligible to be president—voters, electors, and Congress:

This more deferential approach from election administrators or adjudicative bodies is sensible. After all, if voters, electors, and Congress each have the opportunity to scrutinize qualifications, why exert another layer of scrutiny, particularly in close questions? And, would we really prefer election officials, or courts, to strip ballot access from candidates? And, technically, [in a presidential election] voters are electing slates of presidential electors, anyway, not a candidate.

And in fact, that sort of reasoning seems to have been more or less what happened in the case of Keyes v. Bowen, a lawsuit filed by Alan Keyes in the Superior Court of California after the 2008 election in order to challenge the citizenship qualifications of Barack Obama (Keyes was the presidential candidate of the American Independent Party in 2008). On appeal to the Court of Appeal, Third District, California, the court concluded that eligibility should be up to the political parties doing the nominating, with Congress as the final authority:

Plaintiffs’ contentions lack merit. Among other things, we conclude that the Secretary of State does not have a duty to investigate and determine whether a presidential candidate meets eligibility requirements of the United State Constitution. As we will explain, the presidential nominating process is not subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results…Any investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check or risk that its nominee’s election will be derailed by an objection in Congress, which is authorized to entertain and resolve the validity of objections following the submission of the electoral votes.

The Supreme Court refused to hear the case.

There is a reason why these issues of eligibility are “unsettled,” and it is because settling them through the court system would require a highly unusual set of circumstances: (1) a presidential contest in which there is an actual dispute and a plaintiff with standing to sue, and (2) a court (and ultimately, a Supreme Court) willing to rule on the issue of citizenship eligibility for a presidential candidate.

So far, Trump himself is the person closest to being able to overcome the first hurdle, although it’s anyone’s guess whether he’ll even attempt to do so. But if he did, it appears highly unlikely that a court would oblige him by agreeing to hear the case and to rule directly on the issue of Cruz’s natural born citizenship.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]

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