Right on schedule: a “Birther” suit, duly reported
Today, right on schedule, it’s being reported that a Texas attorney has filed a suit alleging that the question involved in the Cruz birther controversy—the definition of “natural born citizen” as it relates to eligibility to run for president—“must be presented to the Supreme Court for fair adjudication instead of left up to popular consensus.”
A person can file a suit asking for just about anything (especially if that person is a lawyer), but that doesn’t mean the courts will hear the suit and rule on the merits. I am by no means the world’s expert on the subject of “standing,” but let me just say it’s a big issue. And Trump, in raising the birther issue re Cruz, has as far as I know ignored the issue and pretended (a) that people could be successful in such suits and that the standing issue wouldn’t matter, and (b) that Cruz could just “settle” this by asking for a declaratory judgment, when it’s most likely that he can’t and that he doesn’t have standing to do so, either.
Plus, the basic legal (as opposed to political) question itself is virtually a non-issue in terms of Cruz, because “natural born citizen” means natural-born “as opposed to naturalized citizen.
Andrew McCarthy will explain it to you:
As I explained in Faithless Execution (in connection with the term “high crimes and misdemeanors”), the meaning of many terms of art used in the Constitution was informed by British law, with which the framers were intimately familiar. “Natural born citizen” is no exception. In a 2015 Harvard Law Review article, “On the Meaning of ”˜Natural Born Citizen,” Neal Katyal and Paul Clement (former Solicitors-General in, respectively, the Obama and George W. Bush admininistrations), explain that British law explicitly used the term “natural born” to describe children born outside the British empire to parents who were subjects of the Crown. Such children were deemed British by birth, “Subjects ”¦ to all Intents, Constructions and Purposes whatsoever.”…
As Katyal and Clement observe, changes in the law after 1790 clarified that children born of a single American-citizen parent outside the United States are natural born American citizens “subject to certain residency requirements.” Those residency requirements have changed over time. Under the law in effect when Cruz was born in 1970 (i.e., statutes applying to people born between 1952 and 1986), the requirement was that, at the time of birth, the American citizen parent had to have resided in the U.S. for ten years, including five years after the age of fourteen. Cruz’s mother, Eleanor, easily met that requirement: she was in her mid-thirties when Ted was born and had spent most of her life in the U.S., including graduating from Rice University with a math degree that led to employment in Houston as a computer programmer at Shell Oil.
As Katyal and Clement point out, there is nothing new in this principle that presidential eligibility is derived from parental citizenship.
As for the political issue expressed in the lawsuit (which is nothing if not policial), and the political issue in Trump’s having brought this topic up in the first place, I’ve written a bit about it before. I’ll just add the obvious, which is that this is a strategic move of Trump’s because Cruz threatens his lead, and he is acting in the guise of what’s known on blogs as a “concern troll” re Cruz. I also would add that it was not an unknown issue prior to Trump’s raising it. It had been discussed quite a bit for some years. Just as an example, in this very blog, it was raised in the comments section back in 2013, and it has been raised many times since. And here’s an article from 2012. There are plenty more.
When people run for president (or are elected president, or are even in the public eye), it’s not at all unusual for people to file lawsuits of various kinds against them. Why should Cruz be any different? The fact that this is the case is something Trump knows full well, and he also must know—as an Obama-birther—the disposition of the many many lawsuits against Obama on a similar issue. The facts re Obama’s birth were slightly different (although, if birthers were correct about those facts, they were even more challenging in terms of the “natural born citizen” definition than Cruz’s, not less), but the issue of standing was quite similar for the Obama suits and resolved in favor of “no standing,” with court dismissal after court dismissal.
Just as one might imagine (and I believe this would have happened without Trump’s bringing it up), good old Alan Grayson says he will sue if Cruz is the nominee. Like most articles on the subject, the one I just linked neglects to even mention the issue of standing, which is a huge and extremely relevant issue.
This controversy rests on the legal ignorance of the American public, and Trump is relying on that ignorance, too. But I suppose no one ever went broke relying on ignorance.
In an article from a couple of days ago, liberal law professor Cass Sunstein writes about the idea of Cruz seeking a declaratory judgment to resolve the question. Although I often disagree with Sunstein about legal theory and certainly about politics, here he’s just stating a legal fact rather than a matter of opinion, a fact supported by the evidence of legal precedent and legal procedure:
For technical reasons, no federal court is likely to rule against Cruz. First, it is settled that voters as such lack standing to sue, and there is a good chance that no one can establish the required “injury” to complain in court about Cruz’s foreign birth. Second, the issue might be taken to present a “political question,” in the technical sense that it will be treated as one to be resolved through the democratic process, not the judicial system. (Donald Trump suggests that Cruz should seek a declaratory judgment, but you can’t just go to court because you are interested in its opinion.)
Note in particular that last sentence. I contend that Donald Trump also knows that Cruz almost certainly can’t get a declaratory judgment, but for political reasons Trump is pretending otherwise. You may admire and support him for that: “What a fighter, what a strategist, what a tough guy!” I also admire toughness in politics, but I’m not big on lying and misleading the public. However, that’s not my main beef with Trump. I have other, more important criticisms of him, which I’ve described time and again (for example, here) and have no need to reiterate in this post.
[NOTE: Mark Levin, ordinarily a big Trump-booster, agrees that Trump should lay off and that the legal issues are clearly in Cruz’s favor.]
Plaintiff is an 85 year old lawyer.
As much as I disagree with Trump he may be right about this issue with Cruz.
I agree Dems would sue. Better to shut that down now.
Trump just wanted uncertainty into the election.
Mission Accomplished.
Might work with Iowa voters, but NEVER in Nebraska.
jack:
Did you read my post?
They could sue—but the suits would go nowhere.
Cruz can’t “shut that down,” because for the same reason—you “can’t just go to court because you are interested in its opinion.”
What about all of that don’t you get? That’s not a snarky question; it’s a real one. Do you disagree with those points? If so, why?
I know nothing of the legal end of all this. I guess the reality is if the Dems sue you have to defend yourself.
I guess it’s like … hey he wants to damage me in some way! Well when he does we can take it from there but until then we can’t do anything.
Is that the law?
jack:
No, if someone sues you don’t have to defend yourself, if the suit is thrown out of court because the plaintiff lacks standing to sue.
The plaintiff is the party bringing the suit.
Would you rather have this lawsuit get filed now, or after Cruz were to get the nomination by the despicable Rep. Alan Grayson?
This ploy by Trump (and the dems) is what is called “muddying the waters”. Neo, you’re right that these suits should go nowhere, just like they didn’t with Obama. I do worry about our politicized judiciary, though. It wouldn’t surprise me if they ruled the opposite of what they did for Obama. Earlier today I sent that Harvard Law Review article to a skeptical friend. The ending sentence:
***The law used to read “father”.
Judge in Houston would do the whole electoral process a huge favor if he dismissed the case, on his own motion, as frivolous due to lack of standing by the voter/plaintiff.
Might be wishful thinking on my part.
The fact that the 1790 law used to specify that only the children of fathers who were U.S. citizens could become Natural Born Citizens made me think of this video. Knowing that she’s a lover of fine art, I know neo will forgive me (evil grin): It’s a Man’s World by James Brown and Luciano Pavaroti
This is just the kind of manure spreading that makes me detest Trump. His immature performance during his soliloquy on the subject motivated me to leave the room. (Since I live in California I will have no meaningful voice in the nominating process anyway.) Before I left, I am pretty sure that I heard Trump say that you are not a natural citizen unless born on American soil. So, tough luck children born of military or foreign service parents while their parents were serving the country in one hell hole or another. I am fairly sure he did not mean it, and will probably deny saying it if anyone bothered to ask; it is just political rhetoric. Or bombast. Yeah.
Oldflyer,
Or on an OCONUS vacation.
I used to know the answer to this, but I’ve forgotten – aren’t overseas US military bases typically sovereign American territory in terms of legal character?
Whether valid or not, it’s a club to beat up Cruz with so it will not go away.
Not exactly sure but it looked like 85 year old lawyer attached to his Complaint the Harvard Law Review article and magazine articles. Completely wrong.
Eric,
So if a woman goes into labor on base, her child is natural born, but if she is on a weekend trip hours away from base and goes to the nearest hospital, the child is not? What about women who work in a consulate without a hospital?
I have some in-laws stationed in Japan when their daughter was born. Both mother and father was in Japan at the time. He was in the Air Force. This was mid 60’s. When they came back to the states they had to get “something” (i’ll check with them about exactly what) for their daughter to be a citizen.
Point is they did have to do some kinda legal paperwork. Of course they did get it and she is a citizen.
If this is not a problem, then why did McCain do this:
http://www.cbsnews.com/news/senate-panel-mccain-eligible-to-run-for-president/
That is what I’m talking about. McCain got the go ahead to run so that this issue was off the table, since he was born in Panama. This is what Cruz needs to think about. Might seem dumb, but trust me, if Trump throws it at him now, Clinton will throw it at him even harder later.
wreath:
I don’t think you get it. Did you read the post?
Many lawsuits will be filed. As with Obama. They will almost certainly be thrown out of court due to lack of standing. It’s not “now or later.” It’s not “let’s get it resolved.” So far, courts have not taken this sort of lawsuit because no one has standing.
K-E:
Congressional leader McConnell has already said they won’t do that for Cruz. They did it for McCain because he was their guy.
Cruz called McConnell a liar a while back—remember? Think McConnell’s going to do him any favors? McConnell does not want him to be the nominee.
By the way, when they issued that statement on McCain, he was already the Republican nominee.
The lesson here is that Leftists don’t need to follow the rules, so trying to shame them or using the Law against them, doesn’t work. They cheat, because they are at war and they know it.
Trump is the pragmatist, he doesn’t care about either side, he just wants his.
The problem from the anti Left perspective, is that if the Left doesn’t follow the rules, but the rest of us are going to be penalized by those rules, what’s the point of following any of their Authoritarian Rules to begin with? It’s not a matter of merely pragmatic interest. Even if you could benefit from it the way Hussein benefited, while getting rid of your enemies using the Constitution that was meant to get rid of totalitarian regimes instead, in the long term, the Left wins.
Tails they win, heads you lose. Catch 22 scenario, a classic in strategy, where it doesn’t matter what the enemy does, they still lose. Pragmatically, you could buy into the game and the System, and benefit. But for how long?
They will almost certainly be thrown out of court due to lack of standing.
Unless the courts force the unsealing of personal records, to prolong the issue or provide standing for the challenge, as Hussein’s aides did for his opponent in the Senate and local political runs.
It’s not a double standard, the game is rigged. Odd numbers, they win. Even numbers, Cruz anti Leftists lose.
If the System actually worked half the time people pretends that it does, we wouldn’t be at this point of development in Civil War II. It is because the System is corrupt and broken, rigged intentionally, that has produced what people see now a days.
So I wouldn’t find it surprising if the System itself, while claiming “no standing” or whatever legal precedent, rules in favor of the Left’s strategy, ultimately in the end.
expat,
That’s basically the same question as what if my mom was simply on an OCONUS vacation – say, in the middle of a round-trip cruise boarded from Florida to the Bahamas – when I popped out.
Oldflyer writes:
Negative! Since California has a huge amount of delegates to the Republican convention, you few conservatives have an outsized say in the primary. 169 of 172 of California’s delegates to the Republican National Convention will be pledged to the winner in the June 7th California Presidential Primary. That’s 7% of the entire Country! California is a Winner-Take-All state by district and statewide.
Now in the general election, you’re screwed.
On the “standing” issue:
Hillary Clinton gets indicted, and the evidence appears overwhelming against her. To enable her sufficient time to devote to her defense, she quits the election campaign.
Biden seriously considers running, but comes to the conclusion that he no longer has the combination of energy and stomach to run for office. So, he declines to enter the race.
Bernie Sanders is unelectable, and the Democrats realize that they need a dynamic, charismatic, telegenic candidate, pronto!
Lo and behold, 35 year old, summa cum laude Harvard graduate Lorre Che Lee (LCL) fits the bill and Debbie Wasserman Schultz, on behalf of the DNC, successfully drafts young LCL to run.
LCL’s candidacy gathers great momentum, and LCL is clearly on the way to securing the Democrat Party nomination-apparently almost unanimously.
However, there is highly credible evidence that LCL, who had been adopted, was (i) born in a foreign country of biological parents who were citizens of that foreign country, and (ii) was not adopted until LCL was 8 months old.
Democrats being Democrats, and the main stream media being what they are, make themselves oblivious to this evidence.
So, just who does have standing to bring a case to quash LCL’s candidacy and/or, assuming LCL wins sufficient Electoral College votes, being sworn in as president in 2017?
Ira,
Good hypo.
There was some discussion over at Ace of Spades earlier today about whether Trump and Cruz are working together behind the scenes. I’ve long suspected it, and I’m not the only one. Even last night’s exchange didn’t change my mind. I heard no evidence that there is any real bad blood between them. Trump has been very clear that he’s bringing up the topic of Cruz’s eligibility because the Democrats certainly will bring it up if Cruz is the nominee.
Look at how the Clintons have always handled scandals: “That’s old news. Can’t we just move on?” Maybe Trump and Cruz are trying something similar. Hashing it out now could defang Democrat attempts to make it an issue later.
I believe Trump has a better chance of winning the general election at the top of the ticket than Cruz does. I still think a Trump/Cruz ticket is very plausible, and it has lots of advantages. Trump can capture Northeastern independents, while Cruz would do better in flyover country. It’s a win-win. And as I’ve said before, hopefully Trump would be willing to listen to and take advice from Cruz on Constitutional matters. (“No, Donald, you can’t do that! It’s unconstitutional!”) A man doesn’t get to where Trump is by abusing and ignoring knowledgeable underlings.
rickl…
Cruz — in the spin chair — immediately after the ‘debate’ — the sound bite ceremony — asserted that he still very much likes Trump.
On policy, they are quite close.
I would go with Trump at the head of the ticket — except that HRC and company ALSO feel quite fine with Trump at the top.
That’s a deal breaker for me.
It tells me that her camp has killer sound bites that will harpoon Moby Trump, the great red-headed whale.
The prospect of squaring off with Ted Cruz — freaked her campaign staff.
That’s practically all I need to know.
I want the head of the ticket to be proof against the mud sure to be thrown.
I don’t think that Ted’s legal career has any of the mud that HRC needs.
Whereas, HRC has an Atlantic convoy of baggage travelling with her.
&&&
Know our tyrant king, I would expect Barry to keep dripping poison on her tail — trying to line up a true believer as his successor.
If the economy implodes — along with the markets — already well underway — then the Democrat party will take a beating at the polls — 1932 style.
&&&
Posterity will record Barry Soetoro as America’s Bubble King.
1) He lives in a bubble.
2) His policy suite launched epic bubbles on a planetary scale.
Note that Instapundit said the lawyer filing the suit on Cruze was disbarred in two states. Re being born of American parents overseas. My wife and I are from families that have lived in America for over 200 years, our youngest was born in Libya where I worked at the time. We registered his birth at the American Embassy and got him a passport at the age of 3 months. As I recall when he when into the US Army he did have to sign and declare himself as an American citizen. He recently retired as a high ranking Army Officer. He did have some push-back when he would facetiously refer to himself as an “American-African.”
Land is natural. Blood is natural, too.
I just love it.
We have a genuine Constitutional scholar in Ted Cruz. A guy who has argued one or more cases before SCOTUS.
Not an affirmative action phony who shucks and jives before foreign tyrants, who thinks decisive military action is taking out one ISIS pickup truck at a time and insists on calling it ISIL.
Even with Kasich and Bush on the platform, the GOP is presenting the best face to America since Ronaldus Magnus.
Eric, Ira:
I plan to tackle that hypothetical tomorrow.
Stan on the Brazos
..our youngest was born in Libya where I worked at the time….He did have some push-back when he would facetiously refer to himself as an “American-African.”
I am reminded of Lord Wellington’s reply to being called Irish by virtue of being born in Ireland, the offspring of members of the Protestant Ascendency.
I doubt many Irish appreciated that remark.
Trump is not a moral man.
I knew this as soon as he tried to brag about his buying of influence over politicians. We already have a word for that: corruption.
The playing dumb also insults my intelligence.
I’m getting the feeling that in temperament, he’s not far from Hillary or any of the despised figures on Wall Street.
@snopercod,
I heard part of an interview Hugh Hewitt did with a former politician from CA, and the guy said recent changes were made so that CA now votes proportionally. They thought it would make candidates campaign in the state again, which they never do anymore since it is a Democrat lock.
“Trump is not a moral man.”
Why was this not obvious 5, 10, or 20 years ago? 😉
Stan on the Brazos Says:
January 15th, 2016 at 9:31 pm
Note that Instapundit said the lawyer filing the suit on Cruze was disbarred in two states. Re being born of American parents overseas.
…
* * *
Great story.
Looks like you are a Texan too!
* * *
Gringo Says:
January 15th, 2016 at 10:50 pm
I am reminded of Lord Wellington’s reply to being called Irish by virtue of being born in Ireland, the offspring of members of the Protestant Ascendency.
“Being born in a stable does not make one a horse.”
I doubt many Irish appreciated that remark.
* * * *
The Irish didn’t appreciate much about that era at all.
Thanks, neo-neocon.
I meant to include the following in the hypothetical:
LCL’s parents, Mr. and Mrs. Lee, had always acknowledged that they had adopted LCL. Mr. Lee was famous among his Upper West Side NYC neighbors for constantly boasting, apparently truthfully, that he would never tell a lie. As an example, Mr. Lee said that when LCL was little and asked if Santa Claus was real, he would always reply, “Hey, there’s a squirrel.” When asked by a Breitbart reporter, “Where was LCL born?”, Mr. Lee replied, “No comment.”
Regarding the purported biological parents of LCL, the highly credible evidence indicates that they had never been outside of their county until after LCL was born.
I have a civil case filed in court now. The 1st cause of action is for Declaratory Relief. Standing is achieved if the plaintiff can prove he is harmed or will be harmed without immediate action. I fail to see why Ted Cruz would lack standing, since he is a position to be harmed, and is being harmed by the ambiguity surrounding the question of natural born citizen. Declaratory Relief is given precedence in court hearings. In this case and if filed by a U.S. Senator, it would undoubtedly be fast tracked. Cruz knows this. He’s stonewalling. It will not go away unless he drops out of the race. Democrats will see to it.
Neo, as much as I despise Trump and agree with you that he is raising this issue out of pure political calculation, it will nevertheless haunt a Cruz nomination and could very likely cost him the general election. He had to know about this pitfall, otherwise he wouldn’t have renounced his Canadian citizenship in preparation to run for president. He took a chance bu not addressing this earlier. He made a mistake, just as he did at the debate by bringing up New York values. For all of his touted intelligence, he sure seems stupid sometimes.
The Other Chuck:
No, Cruz could NOT get a declaratory judgment.
See this (by J. Christian Adams, whose bio is here and who was in the Justice Department under Bush):
The problem from the anti Left perspective, is that if the Left doesn’t follow the rules, but the rest of us are going to be penalized by those rules, what’s the point of following any of their Authoritarian Rules to begin with? It’s not a matter of merely pragmatic interest. Even if you could benefit from it the way Hussein benefited, while getting rid of your enemies using the Constitution that was meant to get rid of totalitarian regimes instead, in the long term, the Left wins.
Tails they win, heads you lose. Catch 22 scenario, a classic in strategy, where it doesn’t matter what the enemy does, they still lose. Pragmatically, you could buy into the game and the System, and benefit. But for how long?
Sulla or Caesar? We shall see.
Beverly, a dictator voted in vs a populist?
Certainly the right time period of civil wars which broke the idealism of Rome itself. Although I think any potential Caesars were raised after 2001, for the US, due to those formulative years.
http://www.unrv.com/fall-republic/julius-caesar.php
Do we understand completely the difference between “natural born” and “naturalized?” Cruz’s citizenship will turn on this question.
He was born in a Canadian hospital and does not have the law based exception carved out for the children of our ambassadors.
Neo, I had to study what constitutes standing and ripeness in preparation for my civil suit. My attorney and I discussed the very same issues Mr. Adams addressed. You don’t have to wait until the harm has occurred, but you do have to offer proof that it is imminent, not that it “could” occur. Anything can happen, which is Mr. Adams point about ripeness. In my case, the 2nd cause of action was for a temporary restraining order and injunction to stop the “imminent” harm from occurring. The very fact that there is now pending litigation out of Texas, however it may be later dismissed, is proof of attempted harm.
Also, there is legitimate disagreement over this issue, with two liberal law professors who were both teachers of Senator Cruz taking opposite sides. Alan Dershowitz says that Cruz is a natural born citizen, while Laurence Tribe says possibly otherwise and that it won’t be settled until it reaches the Supreme Court.
The Other Chuck:
Larry Tribe will say whatever he thinks serves his purpose in this case. Dershowitz is more honest in general; doesn’t always spout the liberal party line.
I have never read anything Tribe has written that indicates that Cruz would be able to obtain a declaratory judgment on the matter, which is the issue you and I were disagreeing about. Not that I put much faith in what Tribe says when political matter is at stake. But it is my distinct impression that he has not spoken on the declaratory judgment issue; he has merely spoken on the natural born citizen issue, which is a different one. And the gist of all he’s really said on that latter issue is the equivalent of “Well, there are some people (the most strict “originalists,” which Tribe himself is not, to say the least) who would argue that Cruz is not.” He has said it’s not “settled” because the Supreme Court hasn’t addressed the issue. Well, we already know that.
And you know WHY the Supreme Court has never addressed the issue? Because it would have only come up in a presidential election, and no one has standing to sue! The phrase is only relevant to presidential elections, as far as I know. So, in what other situation would it ever have come up? None, as far as I can tell or imagine.
Re your suit—an ordinary civil suit has a cause of action—whether or not damage has yet occurred or merely might occur if something happens. But the cause of action is there, the standing is there. There is no standing here and no cause of action, so possible future damage from something is not a matter for the courts.
Neo, you are right that Dershowitz and Tribe weren’t talking about Declaratory Relief. Since I’m not a lawyer I can’t really discuss this from an informed position and my knowledge of the subject is limited to state court anyway. The politics of it will not go away however. There is mischief brewing in Florida with Alan Grayson, and Tribe is waiting in the wings. Trump is taking advantage of this, but he’s not the one who can do the damage later on.
The Other Chuck:
See today’s post on the subject.
Stan on the Brazos
“..our youngest was born in Libya where I worked at the time….He did have some push-back when he would facetiously refer to himself as an ‘American-African.'”
Reminds me off what I call so-called “Native Americans”, “Siberian-Americans”.
As for standing on this issue, wouldn’t any primary or general election opponent be able to claim future harm if an “ineligible” candidate has a chance to beat them?
geokstr:
No, too speculative, no cause of action, no damage, no suit, too distant and iffy a future event.
Read how declaratory judgments work.
The debate over ‘natural born citizenship’ and Ted Cruz birth in Canada to an American mother – does this affect his eligibility to become president? This has been debated before in some circles
Back in 2013, Georgetown law’s constitutional law prof, Randy Barnett, summed up the situation of Ted Cruz, this way:
I practice law in a another country. Why couldn’t Mr. Cruz choose a defendant with whom there would be a “case or controversy”? Like, say, the Democratic nominee?
RSW:
What case or controversy would Cruz have with the Democratic nominee? I have no idea what you’re talking about. And who is the Democratic nominee at the moment? There is none.
But even after the Democrats have nominated someone, on what grounds would you think Cruz could sue that person?
Rest assured that the Democrats (including the media) will adopt ANY position that redounds to their benefit. So unless some external power (perhaps the Supreme Court) imposes its will the Democrats will have NO problems with any scenario that may come up as long as they win.
And as I’ve said before, just equitably, if the arguments regarding Obama’s birth and parentage were considered illegitimate by all establishment politicians so is the Cruz issue.