It’s really been fascinating to see the way Trump and the MSM has handled the Cruz-birther issue, as well as how the blogosphere has reacted. I see the questions everywhere—which is exactly what Trump and his forces want. The way it’s been going lately is to put out this oh-so-helpful sort of suggestion: Ted Cruz could settle this. All he has to do is ask Congress to pass a resolution saying he’s a natural-born citizen, as they did for colleague John McCain. And/or: Cruz should go to the courts and seek a declaratory judgment.
Voila! Problems solved! So, why not do those things?
The answer to the first question is fairly straightforward. When the Senate issued that statement that McCain was a natural-born citizen and therefore eligible to run, McCain was already the Republican nominee. Cruz is not.
But even more importantly, the Senate did it for their colleague McCain because he was their guy. He’d been a senator forever and had played the Senate game very nicely. But Mitch McConnell has already stated he will not do that for Cruz. McConnell didn’t mention it, but Cruz called McConnell a liar on the Senate floor a while back—remember? Think McConnell’s going to do him any favors? McConnell does not want him to be the nominee. He wants this issue to hurt Cruz.
Cruz had a choice—sell out to McConnell and what the blogosphere is fond of calling “the establishment” once he got to Congress, or keep his promises. He chose to do the latter in a very uncompromising way, and ruffled many feathers. You may or may not think that was wise, but that’s what happened.
So, on to the next question. Why doesn’t Cruz just get a declaratory judgment from the courts, like the ever-so-helpful Trump and a million gazillion Trumpbots jumping on the bandwagon say he should?
Because it’s almost certain that he can’t get a court to rule on the issue. Understanding why requires understanding some legal concepts that aren’t that easy to assimilate, but I’ll let J. Christian Adams, whose bio is here and who was in the Justice Department under Bush, explain it, because he can do it better than I:
First, court cases require a real case or controversy. Without it, courts do not have jurisdiction to hear a case. The term “case or controversy” mean more than “Donald Trump thinks there is a case or controversy.” It means a genuine clash of interests is occurring.
Trump and his cronies in Atlantic City government, for example, wanted to take Vera Coking’s home. She wanted to keep it. Thus, a real case or controversy existed, and courts had the power to hear the case.
A case or controversy requirement in federal court is a constitutional limit on the power of government. It restrains unelected judges from meddling in affairs they shouldn’t. It means government has less power because judges can’t simply declare things to be. It is a requirement born out of reverence for limiting government power.
Second, who would have standing to bring the Cruz declaratory judgment case?
Standing is another legal concept that limits the power of government. If a plaintiff in a federal court case has not suffered an injury of some sort, the court has no authority to hear the matter and meddle in the affairs of American citizens…Cruz has suffered no injury. He is on the ballot, not off. Cruz has only suffered injury from Trump’s bombast. That isn’t enough to give a court power.
Standing cannot be had because there might be a speculative injury in the future. Speculative injuries are not yet “ripe.” Ripeness is another way that the Constitution limits the power of the federal courts over our lives. Judges have no authority to “declare” anything when no injury has occurred.
Perhaps you’ve noticed a trend about Trump and limits on the power of government.
Finally, who would the defendant be in Trump’s outlandish “declaratory judgment” case?
Trump himself? The news media? Fox Business Network? The Atlantic City Casino Reinvestment Development Authority would serve as good as a defendant as any. The bottom line is that there is no defendant injuring Ted Cruz over Trump’s legally flawed birther attack.
The American system of justice is respected because the courts have restrained powers. Restraints on the power of judges to declare this or that fact are important because they prevent judges from issuing edicts when they have no constitutional authority to do so.
But if you’re Trump, it’s better to insinuate that Cruz could do this and that he should do this. Trump hopes that if he says this it will stick, because he is counting on the ignorance of the American people about legal matters. I doubt that Trump himself is ignorant of such things, as one of the most litigious people around.
Hey, but Trump’s the only one who’s tough on immigration, right? So nothing else he does or doesn’t do matters, right? Or is he?:
There are those who don’t want to discuss any of the numerous liberal positions Trump has taken or still holds on so many critical issues””income taxes, the internet sales tax, the role of the courts, abortion, guns, etc.””because they suggest that immigration is all that matters.
There is nobody more sympathetic to that argument than I am [“I” is Daniel Horowitz, author of the article being quoted here]. Immigration stands at the nexus of sovereignty, security, society, and numerous fiscal and economic issues. See my exhaustive article on how our backwards immigration policies will create a permanent Democrat majority, rendering every other policy issue moot. I’ve written several hundred articles on this issue and am in the process of writing a very detailed book on immigration, sovereignty, and the courts.
But as is the case with so many other issues where [Trump] was siding with the far-left until running for president, immigration is no different. His first intuition in September, when the refugee crisis flared up, was to say that we had a humanitarian obligation to bring in Syrian refugees. Then when he discovered that conservatives were so ardently opposed to it, he immediately did a 180 and categorically opposed it in his typical attention-grabbing fashion. At that point there was no turning around, and because the media was attacking his new position from the Left, everyone forgot (or never noticed) his first intuition.
While Sessions, Cruz, and others on the outside like myself were fighting the worst immigration bill of our generation in 2013, Trump was promoting the Dream Act. When it really mattered he wasn’t with us.
By the way, I started reading the comments to that J. Christian Adams article on whether Cruz or anyone could sue to determine Cruz’s eligibility, and many of the readers simply did not understand the article (or hadn’t read it). Here’s a typical response of this type: “Trump’s advice was right on. A declaratory judgement would give Cruz control of the law suit as well as the venue in which it is filed. Trump may not be a lawyer but he certainly has a grasp of the system.” Why, sure thing! And how is Cruz supposed to do that? The entire article is an explanation of why he wouldn’t be able to do it.
Oh, I suppose anything’s possible. Pigs can fly. Some court somewhere could decide to go against all legal precedent and reasoning and issue a declaratory judgment on this. That would signal the collapse of the legal system, but hey—plenty of things have been collapsing all around us, why not that? But no, it’s highly unlikely to happen.
Here’s more [emphasis mine]:
Although Mr. Schwartz [who has filed a suit in Texas courts] said that a judge has already been assigned to the case and that he is prepared to take it to the Supreme Court, legal scholars remain skeptical that it could get that far.
Peter Spiro, a law professor at Temple University who reviewed the filing, noted that the arguments were meandering and the language was full of typographical errors. But of greater concern, he said, is the probability that Mr. Schwartz does not have legal standing to bring such a case against Mr. Cruz.
Many agree that the definition of a “natural born citizen” ”” a constitutional requirement for seeking the presidency ”” remains muddled. The issue has not been decided by the courts because most lawyers think it would require a presidential candidate, or an opponent of one who can claim “injury,” for courts to consider the merits of the case. Mr. Schwartz argues in his complaint that because he is a voter, he has standing to bring the lawsuit.
According to Mr. Spiro, being a voter is too broad a classification to have standing and that the most realistic situation that would bring legal clarity would be for Mr. Cruz to file a lawsuit in the event that a state elections commissioner decided to take him off the ballot because of his Canadian roots. The suggestion that Mr. Trump has made, urging Mr. Cruz to seek a “declaratory judgment,” is also unrealistic, Mr. Spiro said, because courts do not offer such guidance unless there is an active case.
“There’s zero chance of a court getting to the merits on this claim,” Mr. Spiro said. “If Trump wants to put his money where his mouth is, he should be the one filing for a declaratory judgment against state election commissioners who put Cruz’s name on the ballot.”
Okay, show of hands—does anyone think Trump would do that? I, for one, do not. If you want to start a movement to ask Trump to do it, fine. I happen to think he never will, because he knows he would lose, and he’d rather spread rumors than resolve this.
Now, in all the words I’ve written about Trump, you’ve never seen me say he’s stupid, and that’s because I don’t think he is. In other words, he has probably talked to lawyers and knows all of this. Now, you may admire Trump for making a big deal about it, because it’s strategically smart, but that’s only if you like the idea of lying and preying on the stupidity of the public in order to try to sink your opponent.
[ADDENDUM: I want to call your attention to an exchange in the comments section. “G Joubert” correctly points out that politics ain’t beanbag (although the phrase’s origin was not Mencken, but this guy). G Joubet then writes:
Cruz is Trump’s #1 competition for the nomination, and Cruz WAS born outside of the US. What, Trump is supposed to just ignore that Cruz inconvenience just because Cruz’s supporters want him to? Hey, Trump doesn’t back down from anybody or on any issue, and he isn’t afraid to say what everybody else is afraid to say. That’s what makes him endearing.
My response if that, if Trump doesn’t want to ignore Cruz’s birth circumstances, what Trump ought to do is to tell the truth, which is that Cruz is a natural-born citizen, and that the threats of Democrats to sue are bogus because no one has standing to sue. That’s the high road—which Trump will not take, of course.
If Trump wants to take the lower (not the low) road, he can do exactly what the article I quoted towards the end of my post said he should: Trump should himself ask the courts for a declaratory judgment, with Trump as the plaintiff who could be harmed.
He will not do that, as I said. At least, that’s my prediction.
Instead, Trump takes the lowest road of all. Typical, and not “endearing” at all—at least, not to me.
If you find it endearing, then vote for him, by all means. In the end, Americans will get the president they deserve. I hope neither Trump nor Hillary is that president.]
