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