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The justiciability of eligibility

I borrowed the title from Daniel P. Tokaji, of he Moritz School of Law at Ohio State University. His paper resides here. He was writing in 2008, without the benefit of the results of the 226 failed birther lawsuits.

So here it is, with at least 3 candidates for the Republican presidential nomination who some on the birther side would question. What do you think the chances are that we’ll see a Supreme Court ruling in the 2016 election cycle, and how do you think it might happen?

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7 Responses to The justiciability of eligibility

  1. avatar
    Joey June 9, 2015 at 8:17 pm #

    My guess is that the Supreme Court will leave candidate eligibility as a non-justicible politicial question and with a conservative majority, also a states’ rights issue. Since they denied more than 25 Obama-related Petitions for Writs of Certiorari, applcations for injuctions, stays and extraordinary writs, I don’t see them changing their tune.

  2. avatar
    Dave B. June 9, 2015 at 8:26 pm #

    Ain’t going to happen.

  3. avatar
    Dave June 9, 2015 at 10:05 pm #

    Short answer: won’t happen.

    I assume the three you’re talking about are Rubio, Cruz, and Jindal. While birthers may have an issue with Rubio and Jindal, both were born in the US and their eligibility is not in question by anyone who isn’t an idiot.

    That leaves Cruz. I wouldn’t say a SCOTUS eligibility case about Cruz is impossible, but I would say the probability is negligible because of all the reasons stated above, plus the obvious fact that Cruz has no chance at the GOP nomination. Every four years the GOP has a team of crackpots taking the top spots in all the straw polls, who then are crushed in the primaries. Cruz is one of those. SCOTUS is hardly going to weigh in to declare a loser ineligible.

  4. avatar
    Rickey June 9, 2015 at 11:34 pm #

    The real question is whether there is a Republican candidate who would file a lawsuit challenging the eligibility of an opponent. All of them would have a difficult time justifying a lawsuit against Rubio or Jindal because none of them did any birthing over Obama having a non-citizen father. Besides, there is zero chance that any lower court would rule that Jindal and Rubio are not NBCs, Any appeal to a ruling that they are NBCs would be denied cert by SCOTUS.

    The only way that SCOTUS would weigh in would be if a lower court ruled that Cruz is not eligible. If that were to happen, I believe that SCOTUS would grand cert. But the chances of that happening are pretty remote.

  5. avatar
    dunstvangeet June 10, 2015 at 11:09 am #

    There is absolutely no chance that there will be a Supreme Court decision, the sheer amount of things that would have to happen just for the Supreme Court to hear the case are astronomical.

    There might be a birther lawsuit challenging these three candidates (Cruz, Jindal, Rubio), or another one (Santorum, for instance). However, in order for it to get to the Supreme Court, one of two things have to happen (it’s possible that they just want to decide it once and for all, but that is rare):

    1. There has to be a split between the circuit courts. If this lawsuit is filed in Federal Court, then the most compelling reason that the Supreme Court takes a case is because there is a split in the Circuit court decisions. That is why the Supreme Court, for instance, took the Gay Marriage issue. The 6th Circuit Court of Appeals came out with a ruling that allowed states to ban gay marriage, when every other court had come out with rulings that said that states had no right to ban gay marriage. Hense a split, so the court took it.

    2. There is a ruling by a lower court that they consider bad law, and want to overturn.

    So, in order for a birther lawsuit to make it’s way to the Supreme Court, and the Supreme Court to actually hear it, basically what would have to happen is that a lower court would have to rule in favor of the birthers, which is not going to happen.

  6. avatar
    The Magic M (not logged in) June 10, 2015 at 2:22 pm #

    dunstvangeet: basically what would have to happen is that a lower court would have to rule in favor of the birthers, which is not going to happen

    I faintly remember somebody suggesting years ago that a birther-friendly Republican candidate might intentionally lose such a case (by doing more for the plaintiff than just being an empty chair). Not that this is likely now.

  7. avatar
    dunstvangeet June 10, 2015 at 3:01 pm #

    The Magic M (not logged in): I faintly remember somebody suggesting years ago that a birther-friendly Republican candidate might intentionally lose such a case (by doing more for the plaintiff than just being an empty chair). Not that this is likely now.

    Even then, the court itself would basically have to rule against Jus Soli citizenship, which will never happen. A lower court would basically have to overturn U.S. v. Wong Kim Ark, and go directly against that precedent.

    When I say that a court would have to rule against birthright citizenship, they’d basically have to go against a century of legal precedent.