Hardly had the words left the mouth of Ted Cruz that he was a candidate for president, than Donald Trump expressed doubts about his eligibility. Trump said:
It’s a hurdle and somebody could certainly look at it very seriously. He was born in Canada … if you know … and when we all studied our history lessons … you’re supposed to be born in this country. So I just don’t know how the courts would rule on it. But it’s an additional hurdle that he has that no one else seems to have.
Well, Mr. Trump, perhaps you are the one to settle the issue. Trump famously suggested that he could take credit for Obama’s release of his long-form birth certificate in April of 2011. Can Trump also settle the question of what “natural born citizen means” in 2016?
The questions raised about the American-born Obama represented legal issues that were long settled, said several court decisions. One court said that it was not necessary to re-invent the wheel. I believe that is why none of the birther appeals to the Supreme Court were heard—there was no controversy. That cannot be said for the foreign-born Ted Cruz. I know of no clear legal precedent that the courts could apply.
Several birthers suggest that the Cruz candidacy is nothing more than attempt to settle Obama’s eligibility (not that birthers are interested in settling anything except that they are right). From Birther Report:
As I said before, I think Ted Cruz is a good guy. I keep hoping that this is his way of exposing Obama by making the question national debate.
Early in the Obama controversy, I found a 1968 law review article by professor Charles Gordon that led me to expect a judicial solution to shutting up the birthers. What I did not take into account was the fact that Obama’s candidacy raised no legitimate legal questions. Gordon wrote:
Under the presidential qualification clause of the Constitution, only “natural-born” citizens are qualified for this highest office. It is clear enough that native-born citizens are eligible and that naturalized citizens are not.
“Clear enough,” he says. Gordon’s paper was written in the context of a possible run for president by George Romney, born in Mexico. The Gordon article applies to Cruz, not Obama. Gordon raises several scenarios where the definition of “natural born citizen” might be adjudicated. One is the case of a rival candidate suing in state court to keep a foreign-born opponent off the ballot. This was, of course, tried by birthers, but sloppily, and not with a plaintiff who was a viable candidate as plaintiff. The vast majority of birther eligibility lawsuits were dismissed for lack of standing.
Donald Trump, should he formally announce, for President would be considered a (struggling for a word here) “legitimate” challenger to Cruz. Trump could certainly hire a competent lawyer and the case would get national attention. Especially if Trump could get a favorable ruling in a state court, this would be a situation ripe for a federal declarative judgment.
So, Mr. Trump, will Trump v Cruz go down in the history books as the case that defined “natural born citizen”?