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Harvard law professor lines up on the Cruz ineligibility side

Korman and Gallo have appealed their Ted Cruz ballot challenge loss to the New York Supreme Court Appellate Division. Einer R. Elhauge, Carroll Petrie Professor of Law at Harvard Law School, has filed an amicus brief informing the court of some arguments against the eligibility of Ted Cruz.

One wonders whether the issue is moot as Donald Trump continues to lead a dwindling list of rivals for the Republican presidential nomination, threatening riots if he retains a strong plurality going into the Republican National Convention, but does not receive the nomination.

Elhauge wrote an article back in January for Salon.com, a publication that has been fairly consistent in publishing articles that argue against Cruz’ eligibility, against Cruz’s eligibility. Now it’s a legal brief.

The amicus brief contains two sections, the first arguing that Cruz eligibility is not a political question, but rather one that the courts may adjudicate. Then Elhauge argues that Cruz is not a natural born citizen.

Political question

Elhauge opens with an argument that I had thought of myself:

Ted Cruz argues that this court should not consider whether he is a natural born citizen eligible to appear on the Presidential ballot because the issue is a political question. The easy way to see that this cannot be true is to ask a simple question. Suppose that an election board instead ruled that Ted Cruz was not a natural born citizen and thus declined to allow him on the Presidential ballot: would any reasonable person deny that Ted Cruz could challenge such an adverse decision in the courts? Clearly not, which necessarily means that the issue cannot 2 be a political question exempt from judicial review. An issue cannot be a political question for one side but not the other.

The problem with this argument is that in the example given, a court need not decide the eligibility of Ted Cruz in order to redress his grievance of not being on the ballot. If presidential eligibility is indeed a political question assigned by the Constitution to Congress and the Electoral College, then a court need only rule that a state elections commission lacks the authority to exclude someone from the ballot for eligibility reasons based on the Constitution’s Supremacy Clause (Article VI, Clause 2). To my knowledge the Supreme Court has never yet affirmed the exclusion of a candidate from a presidential primary election ballot for eligibility reasons, nor from the general election ballot. The second part of the argument on the political question issue says that the 20th Amendment’s assignment to Congress the question of what to do with a president elect who fails to qualify is a wholly different process than a state board of elections controlling access to the ballot. Are we to have 50 states, each interpreting the Constitution its own way?

Natural born citizen

Elhauge then presents his argument that Ted Cruz is not a natural born citizen. I gained some pleasure from his opening statement, although that joy was tempered by its factual inaccuracy:

Although Ted Cruz tries to discredit this case as a “birther” case, it has nothing to do with the birther challenges against President Obama. Those birther challenges rested on wild claims that some murky conspiracy fabricated the birth certificates and newspapers that showed President Obama was born in the United States. In contrast, the challenge here is purely legal ….

As readers here know, some Obama challenges were purely legal as well, although the particular legal question is different (Obama was born in the US and Cruz was not).

First Elhauge commits what I would call an etymological fallacy, breaking an idiomatic phrase into individual words and trying to define the phrase based only on the words. His argument is that adding the word “natural” to “born citizen” means that all persons who are born citizen are not natural born citizens, or else the word “natural” loses its meaning. The courts up until now take the phrase “natural born citizen” as a whole and use it to reference the English Common Law term of art “natural born subject.”

Elhauge commits a historical falsification regarding the Hamilton Draft of the Constitution that contained the phrase “born a citizen.” He says that this Draft was rejected by the Constitutional Convention, when in fact, it was never presented to the Convention. Elhauge Cites Farrand for the Hamilton Draft, but does not mention Farrand’s note in Records of the Federal Convention 1787:

[The Draft] was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.

Volume 3, Appendix F, p. 619.

I sent Elhauge an email pointing out this error.

I’m skipping over some duplicative and uninteresting bits to arrive at Elhauge’s 5th argument, which is the citation from Blackstone on the English Common Law, and we might find more substance there because Ted Cruz would not be eligible to be president if one relied solely on the English Common Law as it existed in 1787. However, the courts have ruled that phrases in the Constitution are understood in the context of the English Common Law, English institutions and English statutes, and long before 1787 Parliament had made foreign-born children of its subjects themselves subjects. Writing much later, but based on the same statutes, English authority, Lord Dicey said (cited approving by the US Supreme Court in US v. Wong):

‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth

— Digest of the Law of England with reference to the Conflict of Laws (1896)

Elhauge then cites the familiar statement of James Madison before the House in the Smith eligibility debate. He fails to acknowledge that the context of Madison saying that “place is what applies in the United States” is not what the Constitution says, but rather a “general principle,” which is what all the contemporary state laws said. And he fails to mention that Congress the very next year, with Madison a member, passed a law in which it called the children of citizens born overseas “natural born citizens.” In fact, eight of the members of the “Committee of eleven” who added the phrase “natural born citizen” to the draft Constitution were members of that First Congress.

Conclusion

I think Elhauge’s amicus brief against Cruz eligibility has some holes in it.

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32 Responses to Harvard law professor lines up on the Cruz ineligibility side

  1. avatar
    Dave B. March 17, 2016 at 12:00 am #

    Einer Elhauge’s amicus brief in New York:
    http://electionlawblog.org/wp-content/uploads/Amicus-Brief-of-Professor-Einer-Elhauge-FINAL-SIGNED.pdf
    Not real strong.

  2. avatar
    The Magic M (not logged in) March 17, 2016 at 5:30 am #

    More from the amicus brief:

    If the Board mistakenly included Ted Cruz on the ballot and he won a
    majority of the Electoral votes, Congress could refuse to count his votes because
    he is not qualified, but then there would be no candidate with an electoral majority.
    In that situation, the House could pick a President, but the People would suffer the
    irreparable harm of being deprived of the right to themselves select among the
    qualified candidates.

    Exactly. Still that does not magically confer jurisdiction to the courts simply because Elhauge thinks that the alternative is somehow “unfair”.

    Ted Cruz’s brief suggests two fundamental confusions. One is confusing the political importance of an issue with whether it is a political question

    After he just argued that the issue is not a political question *because* it would be of large political importance if an ineligible candidate were on the ballot. *smh*

  3. avatar
    gorefan March 17, 2016 at 11:39 am #

    The Magic M (not logged in): Elhauge thinks that the alternative is somehow “unfair”.

    He’s wrong on that. The Vice-President-elect becomes the President.

  4. avatar
    Smirk 4 Food March 18, 2016 at 10:12 pm #

    Here was a passage that struck me as odd.

    The Constitution only gives Congress certain enumerated powers. Those enumerated powers give Congress the power of “Naturalization.” U.S. Const. art. I, §8, cl.4. But nothing in the Constitution gives Congress any power to create natural born citizens or modify the meaning of natural born citizens.

    Then where does that put those born in Puerto Rico? 8 U.S. Code § 1402 states that

    All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth.

    They are citizens from birth, and Puerto Rico is a US territory (commonwealth if you want to be picky), but they’re still not born within the jurisdiction of the US?

  5. avatar
    Pete March 19, 2016 at 1:03 am #

    You should be writing an amicus brief in favor of Cruz’s eligibility.

    Or a lawyer associated with this site.

    Seriously. This is where the knowledge is.

  6. avatar
    Matt March 19, 2016 at 1:11 am #

    Smirk 4 Food,

    Not every person born in Puerto Rico is necessarily born subject to the jurisdiction of the US. There are 38 foreign consulates in PR.

    The US has bilateral agreements with some countries, granting diplomatic-level privileges and immunities to those consular officers and their families. Children born to such officers do not acquire US citizenship at birth. 7 FAM 1116.2-2 note (b)

  7. avatar
    Scientist March 19, 2016 at 7:41 am #

    The Magic M (not logged in): More from the amicus brief:

    If the Board mistakenly included Ted Cruz on the ballot and he won a
    majority of the Electoral votes, Congress could refuse to count his votes because
    he is not qualified, but then there would be no candidate with an electoral majority.
    In that situation, the House could pick a President, but the People would suffer the
    irreparable harm of being deprived of the right to themselves select among the
    qualified candidates.

    I don’t know what they are up to at Harvard law these days, but Elhauge seems not to have read the 20th Amendment. In that circumstance (assuming New York’s EVs were even necessary to reach 270, which was not the case in either of Obama’s victories, and that New York would vote for Cruz over Clinton-highly unlikely) Cruz’s VP would be the President (unless they were somehow also found ineligible). Such an elementary error renders the rest of his arguments highly suspect.

    The other point is that the Supreme Court (the lowest court in NY) disallowed the challenge on the basis that the plaintiffs missed the deadline to protest and that such deadlines were hard and fast. That means that these arguments are irrelevant to the grounds for dismissal.

    Very weak and not much of an advert for Harvard Law.

  8. avatar
    gorefan March 19, 2016 at 1:31 pm #

    Elhauge says that he is basing the claim that the House would pick the president based on the 12th Amendment not the 20th. Assuming that is right, the House could not simply pick anyone but would have to pick from the other top three candidates to get electoral votes.

  9. avatar
    Scientist March 19, 2016 at 2:28 pm #

    gorefan: Elhauge says that he is basing the claim that the House would pick the president based on the 12th Amendment not the 20th.

    The 12th makes no mention of what to do if the President-elect is found not to be qualified. Only the 20th does. In the event of a conflict between the 2, the 20th would predominate, being later, would it not?

  10. avatar
    gorefan March 19, 2016 at 3:08 pm #

    Scientist: The 12th makes no mention of what to do if the President-elect is found not to be qualified.

    Here is the portion of the 12th I think he is relying on:

    The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.”

    That last sentence was replaced by Section 3 of the 20th Amendment. The 20th Amendment would not come into play “until at the time fixed for the beginning of the term of the President”. In this case January 20th.

    Prior to that, the House “shall chose immediately the President”. Electoral votes for Vice-President don’t come into play under the 12th.

  11. avatar
    Scientist March 19, 2016 at 5:23 pm #

    gorefan: That last sentence was replaced by Section 3 of the 20th Amendment. The 20th Amendment would not come into play “until at the time fixed for the beginning of the term of the President”. In this case January 20th.

    I believe that the 20th supercedes that section of the 12th. The 12th is relevant if there were 3 candidates and no one got 270, but that is not really the issue here.

    If Cruz won and Congress found him ineligible (both extremely unlikely), then his VP would be President until Cruz could qualify (which would be never, since time cannot fix his birth status). That doesn’t IMO deprive the people of their vote, because they are elected as a ticket.

  12. avatar
    Dr. Conspiracy March 19, 2016 at 6:59 pm #

    I have had two emails from Prof. Elhauge in response to emails from me primarily regarding the Hamilton Draft, but other things as well. He thinks he has all the bases covered.

    I am reporting today that a judge in Pennsylvania has ruled the other way.

  13. avatar
    Reality Check March 19, 2016 at 8:55 pm #

    Did he admit he was wrong on the the Hamilton draft?

    Dr. Conspiracy: I have had two emails from Prof. Elhauge in response to emails from me primarily regarding the Hamilton Draft, but other things as well. He thinks he has all the bases covered.

  14. avatar
    Notorial Dissent March 20, 2016 at 1:18 am #

    Elhauge’s amicus has so many holes and errors that it is almost comical. Quite obviously the constitution and constitutional law AREN’T his forte.

  15. avatar
    Dave B. March 20, 2016 at 2:10 pm #

    Maybe he’s just “considered as” a constitutional law professor, which of course means he’s not one at all.

    Notorial Dissent:
    Elhauge’s amicus has so many holes and errors that it is almost comical. Quite obviously the constitution and constitutional law AREN’T his forte.

  16. avatar
    James M March 20, 2016 at 5:21 pm #

    gorefan:
    Elhauge says that he is basing the claim that the House would pick the president based on the 12th Amendment not the 20th. Assuming that is right, the House could not simply pick anyone but would have to pick from the other top three candidates to get electoral votes.

    In the event of a 20th Amendment situation in a three-way race between Clinton, Cruz, and Trump, the 114th Congress chooses Cruz every time.

    In fact, that should be Cruz’s strategy: not to “win”, but to *disrupt* so that nobody wins. In that outcome, Cruz would certainly be made President, though not elected.

    One of Elhauge’s arguments seems to be that a proper exercise of the Twentieth Amendment would case “irreparable harm to the People.” In fact it could be more effectively as “preserving the rights of the People.”

  17. avatar
    gorefan March 20, 2016 at 8:02 pm #

    James M: the 114th Congress chooses Cruz every time

    Wouldn’t it be the 115th Congress?

    This is the passage in Elhauge’s brief that Magic M originally questioned::

    “If the Board mistakenly included Ted Cruz on the ballot and he won a majority of the Electoral votes, Congress could refuse to count his votes because he is not qualified, but then there would be no candidate with an electoral majority. In that situation, the House could pick a President, but the People would suffer the
    irreparable harm of being deprived of the right to themselves select among the
    qualified candidates. ”

    He isn’t setup a three-way race with no one getting 270 but Cruz getting 270 and then being declared ineligible. As I read the 12th Amendment the House can only vote for someone who got electoral votes not some new person (Paul Ryan or Mitt Romney for example). In that case if Clinton is the only other candidate to get any electoral votes the House has no choice but to vote for her.

  18. avatar
    Dr. Conspiracy March 20, 2016 at 8:45 pm #

    He’s more into patents and anti-trust.

    Notorial Dissent: Quite obviously the constitution and constitutional law AREN’T his forte.

  19. avatar
    James M March 20, 2016 at 10:02 pm #

    gorefan: Wouldn’t it be the 115th Congress?

    In that case it will be a really weird couple of months! All bets are off on anything if we haven’t clearly elected a President on November 4th. On the other hand, all realistic expectations have the incoming Congress even more strongly dominated by the Republican Party.

  20. avatar
    J.D. Reed March 20, 2016 at 10:32 pm #

    gorefan: Wouldn’t it be the 115th Congress?

    This is the passage in Elhauge’s brief that Magic M originally questioned::

    “If the Board mistakenly included Ted Cruz on the ballot and he won a majority of the Electoral votes, Congress could refuse to count his votes because he is not qualified, but then there would be no candidate with an electoral majority. In that situation, the House could pick a President, but the People would suffer the
    irreparable harm of being deprived of the right to themselves select among the
    qualified candidates. ”

    He isn’t setup a three-way race with no one getting 270 but Cruz getting 270 and then being declared ineligible.As I read the 12th Amendment the House can only vote for someone who got electoral votes not some new person (Paul Ryan or Mitt Romney for example).In that case if Clinton is the only other candidate to get any electoral votes the House has no choice but to vote for her.

    No, Scientist is right; a perpetually ineligible president-elect would make the Vice President the president. But ain’t gonna happen; in the unlikely event Cruz is elected, he will be confirmed by the Congress and inaugurated as the next president.

  21. avatar
    Notorial Dissent March 21, 2016 at 12:12 am #

    Elhauge is just wrong. The only way the choice would go to the House is if there were a three party run, and I just don’t see that happening. My personal opinion is that a Trump Cruz split would guarantee a Democratic win. If Cruz runs and wins and this mythical Congress decides to not seat him, then whoever the VP candidate was would automatically become President, since the “votes” of the EC are for PRESIDENT AND VICE PRESIDENT together, not each individually. We had to change the Constitution to get away from that mess. Elhauge is just simply WRONG.

  22. avatar
    gorefan March 21, 2016 at 2:24 am #

    Notorial Dissent: since the “votes” of the EC are for PRESIDENT AND VICE PRESIDENT together, not each individually

    Then why in 1976 did Gerald Ford get 240 elector votes and his running mate Bob Dole get 241?

    The 20th Amendment only supersedes one sentence in the 12th Amendment. The rest of the 12th is still current and it distinctly separates the votes for President and Vice-President. If no one gets 270 votes for Vice-President the Senate picks the Vice President from the next two vote getters.

  23. avatar
    Notorial Dissent March 21, 2016 at 4:53 am #

    I will be quite honest and say that I never heard that before, and it shouldn’t have happened, since the EC were supposed to vote for a block of president and vice president not them individually. It’s always possible that one of them did something odd, but I never heard of such.

  24. avatar
    The Magic M (not logged in) March 21, 2016 at 6:19 am #

    James M: One of Elhauge’s arguments seems to be that a proper exercise of the Twentieth Amendment would case “irreparable harm to the People.”

    And he simply doesn’t care such “generalized grievances” do not confer standing? (Yes, I know an amicus brief doesn’t require standing, but if courts don’t even consider something within their jurisdiction if it’s a generalized grievance, how could they ever base a ruling on such an argument? Seems like screaming against the wind to me.)

  25. avatar
    Scientist March 21, 2016 at 7:04 am #

    Notorial Dissent: I will be quite honest and say that I never heard that before, and it shouldn’t have happened, since the EC were supposed to vote for a block of president and vice president not them individually. It’s always possible that one of them did something odd, but I never heard of such.

    It happened in 2004 also. A Minnesota elector voted for John Edwards for both President and Vice-President, whether deliberately or by error.

    There were also a couple of lawsuits in 2000, claiming that Dick Cheney was a resident of Texas rather than Wyoming (since he had been CEO of Halliburton, based in Houston, Texas). The Constitution forbids the electors of a state from voting for residents of their state for both President and VP. Had the plaintiffs won, Texas electors would have been forbidden to vote for both George Bush and Dick Cheney. Without the Texas EVs you would have had Bush with Lieberman as VP, or less likely, Gore with Cheney as VP. So, while the voters elect a ticket, the Electoral College votes for the 2 positions separately.

  26. avatar
    Scientist March 21, 2016 at 7:06 am #

    J.D. Reed: No, Scientist is right; a perpetually ineligible president-elect would make the Vice President the president. But ain’t gonna happen; in the unlikely event Cruz is elected, he will be confirmed by the Congress and inaugurated as the next president.

    I have little doubt that is true. But, even if they found him ineligible, his VP would serve. This would not deprive the voters of any rights, since they elect a ticket and will consider the fitness of the VP to take over (as John McCain learned).

  27. avatar
    Notorial Dissent March 21, 2016 at 8:17 am #

    Scientist, thank you. I will admit to not really paying any real attention to it since they are “supposed” to vote as their state voted. Doesn’t always happen and there is occasionally one who is unclear on the concept or just plain contrary, not really likely to alter the outcome though, and in truth, if it did, the Congress could simply ignore it and seat the actual winners. I think we are way off in the hypothetical weeds though at the moment. I think the likelihood of a sitting Congress failing to seat a popularly elected President is infinitesimal.

    And doesn’t make Elhauge any less wrong.

  28. avatar
    Scientist March 21, 2016 at 9:10 am #

    Notorial Dissent: I think the likelihood of a sitting Congress failing to seat a popularly elected President is infinitesimal.

    I agree.

    Notorial Dissent: And doesn’t make Elhauge any less wrong.

    It actually makes him more wrong, because he raised that as a real possibility. My point is that even in the extremely unlikely event that Congress did find a popularly elected President ineligible, that is an entirely constitutional procedure and would not subvert the people’s vote, because their running mate, for whom the people also voted, would be installed.

  29. avatar
    Thrifty March 21, 2016 at 10:12 am #

    8 years later, I still don’t know what McCain was thinking. I actually vacillated quite a bit on who to vote for because I respected both candidates. In the end I went with Barack Obama because, well, John McCain was kinda old (I guess he still is, and is in fact even older). John McCain was old, and it was not too farfetched an idea that he would die in office, and Sarah Palin scared the bejabbers out of me.

    Scientist: I have little doubt that is true.But, even if they found him ineligible, his VP would serve.This would not deprive the voters of any rights, since they elect a ticket and will consider the fitness of the VPto take over (as John McCain learned).

  30. avatar
    J.D. Reed March 21, 2016 at 11:07 pm #

    Scientist: It happened in 2004 also.A Minnesota elector voted for John Edwards for both President and Vice-President, whether deliberately or by error.

    There were also a couple of lawsuits in 2000, claiming that Dick Cheney was a resident of Texas rather than Wyoming (since he had been CEO of Halliburton, based in Houston, Texas).The Constitution forbids the electors of a state from voting for residents of their state for both President and VP.Had the plaintiffs won, Texas electors would have been forbidden to vote for both George Bush and Dick Cheney.Without the Texas EVs you would have had Bush with Lieberman as VP, or less likely, Gore with Cheney as VP.So, while the voters elect a ticket, the Electoral College votes for the 2 positions separately.

    Actually, the Republicans could have pulled off electing both Bush and Cheney. The Texas electors would have had to vote for Cheney, while withholding their votes from Bush. Cheney would have needed to be elected outright because the Democrats would control the Senate (it was split 50-50 but Gore was still Vice President and this the tie breaking vote until Jan. 20.) Meanwhile the presidential election would have been thrown into the House. There each state has one vote, and Republicans controlled more than 30 state delegations.

  31. avatar
    Scientist March 22, 2016 at 6:46 am #

    J.D. Reed: Actually, the Republicans could have pulled off electing both Bush and Cheney. The Texas electors would have had to vote for Cheney, while withholding their votes from Bush. Cheney would have needed to be elected outright because the Democrats would control the Senate (it was split 50-50 but Gore was still Vice President and this the tie breaking vote until Jan. 20.) Meanwhile the presidential election would have been thrown into the House. There each state has one vote, and Republicans controlled more than 30 state delegations.

    You are correct. I forgot that with Texas not voting for President (or voting for someone other than Bush or Gore) neither candidate would have had 270 and the election would have gone to the House.