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Archive | January, 2016

I don’t think Ted Cruz will ever be held to be ineligible to become President

Presumption of eligibility

In the United States there is a presumption of eligibility for candidates for office. Lacking a statute requiring some showing of eligibility, a candidate for office doesn’t have to prove eligibility; the burden of proof is on a challenger. Jack Maskell of the Congressional Research Service cited George W. McCray from his book, A Treatise on the American Law of Elections:

The presumption always is, that a person chosen to an office is qualified to fill it, and it is never incumbent upon him to prove his eligibility. The certificate of election does not add to this presumption, but simply leaves it where the law places it, and he who denies the eligibility of a person who is certified to be elected, must take the burthen of proving that he is not eligible.

Bradley Schrager argued before the Nevada Supreme Court:

Historically, this Court has approached candidate eligibility cases with a presumption of eligibility and a liberality of construction, especially where an ambiguity of law affects a determination of who may appear on a ballot. This is not a recent trend, but a part of the Court’s consistent approach going back many decades.

And the American and and English Encyclopedia of Law says of Public Officers:

That an officer has been elected and commissioned creates a strong presumption of eligibility.

Differing opinions have appeared on this blog both in articles and comments, on the topic or exactly who is eligible to be president of the United States. While examples exist where state officials have excluded obviously ineligible presidential candidates from the ballot and both state and federal courts have said that the issue of the eligibility of someone born in the United States to alien parents is “well settled,” I have not seen any court employ any kind of balancing test for presidential eligibility. Courts have not ruled candidates ineligible in ambiguous situations.

Political Question

The federal courts have held that they do not have jurisdiction over questions delegated expressly by the Constitution to another branch of government. One important case on this topic was Nixon v. United States, relating to the impeachment of a federal judge. The Supreme Court held that Nixon’s claim of a constitutional violation during his impeachment proceeding was nonjusticiable, a political question that could not be resolved by the courts. Professor Amar of Yale argues that presidential eligibility is likewise a non-justiciable political question.

Federal Judge Wingate, in his decision in Taitz v. Mississippi Democrat Party cited several Obama eligibility cases under the topic of “political question,” and said “…this court can find no authority in the Constitution which would permit it to determine that a sitting president is unqualified for office or a president-elect is unqualified to take office.”

State courts are not burdened by the political question doctrine, but they may well be held incapable of ruling on a presidential candidate eligibility because of the Constitution’s Supremacy Clause that make the US Constitution and federal statutes made pursuant to it the”supreme law of the land.”

In the light of the presumption of eligibility, the lack of any express guidance from history, the reluctance of courts to get involved in presidential eligibility (deferring to Congress based on the 12th and 20th Amendments), on top of the political heat that would be created if Congress rejected a popularly-chosen president-elect, I find it difficult to envision any situation where Ted Cruz would ever be ruled ineligible.


Rubio moves to dismiss Voeltz lawsuit; Doc gets a silent shout-out from

I was gratified to see that FactCheck linked to my coverage of the Voeltz lawsuit in Florida against Ted Cruz and Marco Rubio in their article “Trump Overstates Cruz Challenges.” This is an update.

imageVoeltz (pictured right) filed the lawsuit December 17. Counsel for Rubio filed a notice of appearance January 8, and counsel for Florida Secretary of State Ken Detzner filed theirs January 11. On January 11 Senator Rubio filed a motion to dismiss. (RC had posted the motion at Scribd a couple of weeks ago.) The summons issued to Senator Cruz was docketed as returned served on January 21, and on that date counsel for Cruz entered a notice of appearance, and Voeltz moved for default judgment against Rubio; however, that motion was not entered because Rubio had answered. (There is apparently some confusion in the docket where it shows that Rubio filed his motion to dismiss on January 11, but on the notation to not enter the motion for default, it says the date was January 21).

The Broward County Clerk of Court web site (search for case number CACE15022044) allows downloads of documents, and we should see some sort of response from Ted Cruz eventually. Yes, Cruz supporters, your campaign donations go to defend your guy’s eligibility against an onslaught of legal challenges.


Cruz moves to dismiss. (Well, he would, wouldn’t he?)


Flash: Burns assault to begin at 4 am

Bobby Powell, conspiracy writer and Anton LaVey look-alike, has put out an alert received by me in email:

URGENT!!! I just got received a phone call from a friend in the FBI, who is a Patriot III%er. He says that 200+ armored vehicles are in Burns now, and the occupiers have until 4 am Pacific time on 1/27/16 to vacate the Refuge before an assault begins.

My source says the peaceful occupiers have to get on Highway 20 and go to Burns before the 4am deadline and they will be granted safe passage. Anyone remaining in the Refuge after 4am local time will be considered an "enemy combatant," and they will be subject to the same type of murder the Feds carried out on LaVoy Finicum yesterday evening.

PLEASE SHARE THIS, and help me Save LIVES!!!

The email arrived at 7:58 am this morning Eastern Time, about one hour after the assault supposedly was to start. That’s not much of a warning! Ammon and Ryan Bundy and six others were arrested yesterday afternoon according to Oregon Public Broadcasting. LaVoy Finicum was the person killed in an exchange of gunfire at the wildlife refuge yesterday. Ryan Bundy was also injured. The assault this morning apparently didn’t happen.

It caught my attention because I didn’t know the name of the nearby town was Burns, also the name of the local high school.


Arpaio endorses Trump

Well, he would, wouldn’t he?

imageWith a monumental yawn of non-surprise, I report that the birther Sheriff of Maricopa County, the man who left rape cases uninvestigated to focus on rounding up undocumented day laborers, has endorsed fellow birther Donald Trump for president in an appearance in Iowa yesterday.

Listen to this interview by CNN where Arpaio is grilled over his birther connections with Trump.


Authorities wade in on Cruz eligibility

I am reminded of 2008 and the issue of John McCain’s eligibility. The unanimous resolution of the Senate, the memorandum of Laurence Tribe and Theodore Olson, and most of the writers in a Michigan Law Review publication came out in support of McCain’s qualifications to be president of the United States, even though he was not born in an incorporated US territory, and he may not even been a citizen at birth but only retroactively. The notable holdout was Gabriel Chin.

This time around we read statements in the news media, such as this March (2015) story at NPR saying Cruz is eligible:

And most legal scholars agree. In fact, two of the best-known Supreme Court lawyers — who are not normally on the same side — make the case that Cruz, as were John McCain, George Romney and Barry Goldwater, is eligible to run.

Neal Katyal, who served as acting solicitor general in the Obama administration, and Paul Clement, who was solicitor general under George W. Bush, wrote earlier this month in the Harvard Law Review that “there is no question” Cruz is eligible.

Despite repeated claims of a near consensus, it seems that we find no shortage of law professors who beg to differ, and the eligibility argument is much more prominent in the media than it was 8 years ago.

Opposed to Cruz eligibility


The most recent to come to my attention is a piece by Robert N. Clinton who is the Foundation Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University. He teaches constitutional law, federal Indian law, cyberspace law and copyrights. His opinion piece appears in US News and World Report in the article titled “Ted Cruz Isn’t a ‘Natural Born” Citizen.” Clinton begins:

Let me join the chorus of opinions by saying that based on the original framework of the Constitution and the 14th Amendment, Sen. Ted Cruz does not appear to be constitutionally eligible to hold the office of the president.

Continue Reading →


Ted Cruz eligibility lawsuit in Utah

Fox 13 News in Salt Lake City reports that Walter Wagner has filed a lawsuit in U.S. District Court in SLC claiming Ted Cruz is a not natural born citizen. Read the complaint here. It is styled a “Complaint for declaratory relief.”

This one has a novel definition of “natural born citizen.” According to the complaint, a child born abroad to one US citizen parent is only a natural born citizen if the US Citizen parent had an intent to reside in the US soon afterwards and not in the foreign country. This suit alleges that Cruz’ parents were seeking permanent residence in Canada when Ted Cruz was born.

As authority, Wagner cites the recent article by Mary Brigid McManamon, Minor v. Happersett and the statutory authority for declarative judgments.

From the Minor decision Wagner notes its tangential application in that the two conditions for natural born citizenship given in the case (born in the country to citizen parents for certain, and born in the country to alien parents maybe) state birth in the country as a common factor.

The complaint is well ordered, literate and succinct. That said, there appear to be two insurmountable problems with the case: 1) lack of standing, 2) the lack of any statutory authority supporting the contention that the US Citizen parent must have the intent to reside in the United States. McManamon makes no such argument, and neither does Wagner. This case is

Graphic of the word "Doomed"


Case dismissed for lack of standing – no specific harm pled.