Would courts actually “settle” the birther issue?
[NOTE: I mentioned the other day that I’d be tackling this hypothetical furnished by commenter “Ira.” This is that post. But I’m going to go about it in a somewhat roundabout way, by talking about the law around the Cruz birther controversy first. Don’t worry; I’ll get to that hypothetical a bit later in this post.]
I’ve already written why it is that it’s Trump (and/or the other Republican candidates running against Cruz) who might have standing to sue to settle the birther issue at this point, not Cruz or anyone else. George Stephanopoulos seems to have done his homework on this, because he brought it up yesterday during his interview with Trump on ABC:
Stephanopoulos then said, “But you know, the person who sued [Cruz] probably doesn’t have standing, a lot of legal scholars”“.” Trump interrupted, saying, “That’s all right. There will be a lot of people who sue him who do have standing.”
“Say you have standing, why don’t you file the case,” Stephanopoulos asked. Trump responded, “Oh that’s an interesting case. Wow that sounds like a very good case. I’d do the public a big favor.”
Note that Trump doesn’t say who this “lot” of people who will sue Cruz “who do have standing” might be.
Show of hands—does anyone think Trump will actually file for a declaratory judgment? It’s possible, I suppose. But in terms of tactics, it would probably be much better for Trump to keep the issue unsettled than to discover that Cruz is a natural born citizen after all.
If Trump were to try to actually sue, however, he might discover that, even if he does have standing (and it is by no means certain that he does), the courts might be very reluctant to get into the issue at all, and that they would rather leave the question to the electoral process or to Congress. This article by election law expert Derek Muller analyzes the legal and policy considerations behind judicial reluctance to rule on such issues. Muller also indicates that the possibility that a state election official might take Cruz off the ballot and thus give Cruz a cause of action to file a suit is highly unlikely because states tend to be hesitant to take such steps.
Muller writes that both the states and the courts have tended to defer to three other bodies to decide on whether a candidate is eligible to be president—voters, electors, and Congress:
This more deferential approach from election administrators or adjudicative bodies is sensible. After all, if voters, electors, and Congress each have the opportunity to scrutinize qualifications, why exert another layer of scrutiny, particularly in close questions? And, would we really prefer election officials, or courts, to strip ballot access from candidates? And, technically, [in a presidential election] voters are electing slates of presidential electors, anyway, not a candidate.
And in fact, that sort of reasoning appears to have been more or less what happened in the case of Keyes v. Bowen, a lawsuit filed by Alan Keyes in the Superior Court of California after the 2008 election in order to challenge the citizenship qualifications of Barack Obama (Keyes was the presidential candidate of the American Independent Party in 2008). On appeal to the Court of Appeal, Third District, California, the court concluded that eligibility should be up to the political parties doing the nominating, with Congress as the final authority:
Plaintiffs’ contentions lack merit. Among other things, we conclude that the Secretary of State does not have a duty to investigate and determine whether a presidential candidate meets eligibility requirements of the United State Constitution. As we will explain, the presidential nominating process is not subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results…Any investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check or risk that its nominee’s election will be derailed by an objection in Congress, which is authorized to entertain and resolve the validity of objections following the submission of the electoral votes.
The Supreme Court refused to hear the case.
There is a reason why these issues of eligibility are “unsettled,” and it is because settling them through the court system would require a highly unusual set of circumstances: (1) a presidential contest in which there is an actual dispute and a plaintiff with standing to sue, and (2) a court (and ultimately, a Supreme Court) willing to rule on the issue of citizenship eligibility for a presidential candidate. So far, Trump himself is the person closest to being able to overcome the first hurdle, although it’s anyone’s guess whether he’ll even attempt to do so. But if he did, it appears highly unlikely that a court would oblige him by agreeing to hear the case and to rule directly on the issue of Cruz’s natural born citizenship.
Now back to Ira’s hypothetical. I’ll skip some of the details, and instead I’ll deal with what I consider the more basic question he’s posing, which is: what if a major political party seems bound and determined to nominate someone who probably isn’t an eligible citizen under the Constitution? Someone who really isn’t a “natural born citizen,” or who almost certainly isn’t (and neither Barack Obama or Ted Cruz has ever been that person)?
I don’t think we’ve ever had a situation like that in this country before, and that’s because—until now, anyway—the parties have had more respect for the Constitution and they figured they’d probably get in trouble if they tried to do something that violated it as egregiously as that—and that the “trouble” they’d get into would probably be trouble from the electorate itself.
In some ways, the republic is a “gentlemen’s agreement” that runs most smoothly when there is a basic respect for the rules. But since that respect has been eroding in recent years, let’s consider the question of a major party nominating someone who is not a natural-born citizen. I submit that the answer would probably be much like the answer the California Appeals Court gave in Keyes v. Bowen, which is that “Any investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check or risk that its nominee’s election will be derailed by an objection in Congress, which is authorized to entertain and resolve the validity of objections following the submission of the electoral votes.” In other words, the final arbiter would be Congress.
That seems troubling to me, since Congress isn’t exactly the proper receptacle for a lot of trust. Then again, if a major US party were determined to go that far to defy the Constitution, and thought that they could get away with it because the American people wouldn’t know or care anyway, then we would already be well and truly screwed. The courts, even if they ruled differently on it and tried to stop it, would almost certainly not have the power to bail us out, if we had lose sight of our own principles to that extent.
We already are well and truly screwed. Just one party committed to violating the Constitution, whenever it is expedient, reduces it to irrelavancy. That’s what Adams meant in warning of the necessity for a “moral and religious people”.
Religion posits a ‘higher authority’ that supersedes both personal opinion and the popular consensus of the moment. Without that higher ‘authority’ all we are left with is the rule of men. As morality without reference to a ‘higher’ authority is simply the ‘consensus of popular opinion’.
Think about it. Would a single judge – of either party – removed from the ballot one of the leading contenders for President?
On a practical basis, no way.
The Harvard Law Review piece by the two former SG’s settles it. Larry Tribe is just a paid Dem party hack.
Ted’s mother was an American citizen temporarily residing in Canada when she gave birth to Ted.
Trump is just being slick about this in order to muddy the waters. Every tenth grade dropout now thinks he is a lawyer.
Because Trump brought this up I would never vote for him in the primary. But over the Dem, yes.
G.B.:
Amen.
And I am not being funny.
I have periodically posted on my lack of hope for the American future here.
What’s with all the gloom and doom? We’re as close to having a conservative president with both houses of congress in the hands of Republicans as we ever have been in my rather lengthy lifetime. The current Democratic frontrunner is in the process of self-destruction, while her understudy is a socialist nut. What’s not to like?
Wooly,
An electorate that voted twice for Obama because he was black promising free stuff at somebody else’s expense and that seems to be trending towards electing a treasonable crook, a communist, or a bullying blowhard is what is not to like.
I saw a link to some children singing about what a President Trump will do. That kind of stuff I found offensive when the Obama campaign did it. Such adulation for a politician is unrepublican and unAmerican. “A republic…if you can keep it.”
Trump is as mindlessly a progressive about everything other than immigration and terrorism as Hillary. He claims his method of governing will be to find the best people to solve a problem and have them go at it. How will he know who the best people are? He is not familiar with foreign affairs and military affairs. His experience bribing New York and New Jersey local pols and bureaucrats to forward his building projects will not translate well into Federal terms or controlling the bureaucracy. He’ll be manipulated by the professional bureaucrats, the Sir Humphrey Applebys of the US (see “Yes, Minister” and “Yes Prime Minister” to get an idea of what I’m talking about). They’ll eat him alive, and if he twigs to the fact, he’ll discover that he can’t just scream at them “You’re fired” and get the results he wants.
If Trump is the GOP nominee I’ll vote for him faut de mieux, over Hillary or the commie, but I’ll have to use a clothespin on my nose to do it, and will not expect good results from a President Trump administration.
A republic, if we can keep it.
Neo, IIRC, didn’t I ask in a comment a couple days ago whether an opponent would have standing because they might be harmed in the future by losing to an ineligible opponent, and didn’t you respond “no way – too speculative” or some such?
Michael: I didn’t have Trump in mind as a conservative president, because he’s not a conservative. I expect that Trump-mania will fade as we get into the primaries, though I’ve been wrong before, so….
geokstr:
I actually still think that it is too speculative. I don’t think anyone has a cause of action at this point—but it has been suggested by others that Trump would, so I have discussed it. Notice that in the post I wrote that Trump might have standing (accent on the “might”), and also “if he does have standing (and it is by no means certain that he does).” These phrases express my doubt about the fact that he would have standing.
In addition, I wrote in the post that in order for the lawsuit to be entertained a person would need standing and an actual dispute (that’s where the “too speculative” objection would come in for Trump, at this point, when it’s still too speculative to be an actual dispute that has injured him).
Lastly, you might notice that in Keyes v. Bowen, the lawsuit against Obama et. al. was only brought after the election was over—right after it was over, actually. That was no accident, either. Beforehand, it would probably have been thrown out, even though the plaintiff Keyes was an opponent of Obama’s in the presidential election.
So I don’t really think Trump or anyone else could sue at this point. The conclusion I have come to in the post is that I think that only Congress could decide to make a candidate ineligible and that decision and ruling would come after the fact of an election. Or, a political party could do it by not nominating that person in the first place. Or of course the voters could do it by rejecting that person in the voting booth. I don’t think the courts would get involved.
Of course, I could be wrong about that. But if Trump wants to find out, he could file a suit and see.
the donald knows, through his legion of lawyers. that the Cruz ‘birther’ issue is BS. trump is a trojan horse.
Neo: Let’s assume for a nanosecond that Trump really wants to help Cruz clear up the issue when most likely he’d rather have this Joe Btfsplk cloud perpetually haunting him. Could he come right out and accuse Cruz of fraud because he’s not eligible to run, then have Cruz countersue for $1 for defamation, before a friendly judge? Could that either force or allow the judge to rule on Cruz’ eligibility in order to decide the case? I know that’s a reach, but there is no time for a Constitutional amendment to define “natural born” and it would be in Cruz’ and this country’s best interest to settle this ASAP in a way that will shut the left up. They have no other real issue, other than differences on the real issues, to tar him with.
Plus the lying turtle who runs the Senate does not like Cruz for, among other things, calling him a liar on the Senate floor. He was more than willing to pass a resolution confirming McCain’s eligibility in 2008 because he’s a fellow RINO, but he’s closed out that avenue for Cruz.
geokstr:
Without researching it, I’d say off the top of my head that no, that would not work at all, because public figures running in a campaign cannot sue their opponents for defamation. If that were allowed, we’d have no end of lawsuits. In general, public figures can’t sue for defamation unless they prove something called “actual malice” (which has many elements necessary and is ordinarily extremely hard to prove), and certainly that would extend to campaigns.
Randy Barnett who has pretty conservative chops as a professor at Georgetown and an authority on the Constitution says that Cruz is “Natural Born” and legal to run. That pretty much settles it for me, however I am not a member of the judiciary so that unfortunately means squat. This was even taken from the not so conservative Washington Post.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/01/07/why-ted-cruz-is-a-natural-born-citizen/
Thanks neo-neocon for succinctly describing the question I posed:
I think the answer should be ANY AMERICAN has standing because every American is entitled to the protection against not-yet-mature or potentially non-loyal government officials where the Constitution sets requirements for such officials.
By way of example, assume that Massachusetts voters elected an eight (8) year old Syrian refugee to be one of its two US senators.
We know that Article 1, Section 3, Clause 3 of the Constitution requires that to be a senator a person shall “have attained to the Age of thirty Years, and been nine Years a Citizen of the United States and . . . when elected, be an Inhabitant of that State for which he shall be chosen.”
We also know that even one vote can make the difference between an act of major consequence being enacted by Congress or being defeated. (See the Cornhusker kickback.)
I, a California resident, should have standing to obtain court protection, under the provisions of the Constitution, against the voters of Massachusetts getting such an unqualified person into the US Senate.
Will:
Barnett wrote that as a contributor to the Volokh Conspiracy, a libertarian/conservative web site. It in no way means that WaPo agrees with them. I used to comment there for years until they made a deal with WaPo to host them and now you have to subscribe.