Cruz citizenship case should be tried in court of public opinion

January 19, 2016
Reporters gather around U.S. Senator Ted Cruz (R-TX), who announces he will not filibuster, as he talks to reporters after a Republican Senate caucus meeting at the U.S. Capitol in Washington October 16, 2013. The U.S. Senate announced a last-minute deal on Wednesday to avert a historic lapse in the government's borrowing ability and a potentially damaging debt default, and to reopen the government after a two-week shutdown. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS BUSINESS)

Senator Ted Cruz (R-Tex.) announces he will not filibuster, after a Republican Senate caucus meeting at the Capitol in Washington, October 16, 2013. REUTERS/Jonathan Ernst

Senator Ted Cruz (R-Tex.) has a problem. Most constitutional scholars — myself included — think that Cruz is eligible to be president because he is an American citizen when born in Canada on Dec. 22, 1970. All thanks to a 1952 congressional statute that conferred natural-born birthright citizenship on various foreign-born children of American citizens. (Cruz’s mother was and is an American citizen, but his father was not in 1970.)

But there are others out there — for example, Mary Brigid McManamon, a professor at Widener University’s Delaware Law School who disagree with this general consensus. Alas, Cruz cannot point to a definitive U.S. Supreme Court case that squarely settles the constitutional issue, and it is unclear how a definitive court case might materialize.

The problem is not, as some commentators have claimed, a legal doctrine known as “standing” — a rule that requires that a person who comes to court must have a proper legal interest at stake in the litigation. Rather, the biggest barrier is a principle of judicial restraint known as “the political question doctrine.”

A key idea underlying this doctrine is that the Constitution itself, in its text or spirit, sometimes takes a certain sort of constitutional question away from ordinary courts and makes some other decision-maker the real judge — a special court for a special question. In a presidential impeachment, for example, the Senate, and only the Senate, is the real court. Senators are the judges and jurors — the deciders of fact and law — under the Constitution itself.

Supreme Court Chief Justice William Rehnquist reads the vote tally in the Senate's impeachment trial of President Clinton, as Clinton's attorney Charles Ruff (L) listens, February 12. The Senate rejected both counts, with neither charge receiving a majority of votes.

Supreme Court Chief Justice William Rehnquist reads the vote tally in the Senate’s impeachment trial of President Bill Clinton, as Clinton’s attorney Charles Ruff (L) listens, February 12, 1999. REUTERS/Archive

Did the president, in fact, do what he is alleged to have done? In law, does what he did count as a removal-worthy “high crime [or] misdemeanor”? Whatever the Senate decides is the last word and the only word — what lawyers call res judicata, a thing already adjudicated. A final judgment that cannot be undone by any other tribunal. Thus, ordinary courts, state and federal, are not allowed to overturn impeachments and have never done so in American history.

Similarly, the Senate is designated by the Constitution as “the judge” of the qualifications of would-be senators. If a dispute arises about whether Senator X is in fact 30 years old, as the Constitution requires — if he points to his birth certificate but others claim the certificate is inadequate or fake — who decides this question? The Senate, and not some ordinary court.

Now return to Cruz. Here, too, his eligibility — whether his birth certificate is good enough — is in certain situations an issue not best decided in an ordinary courtroom. Under the structure of the Constitution, and in keeping with American traditions stretching back to the founding, the proper court to judge Cruz’s eligibility is, first and foremost, the court of public opinion. Anyone who thinks that Cruz is not eligible is free to vote against him.

If Cruz prevails in that court of public opinion, the Constitution provides a final appeal to a second court of sorts: Congress, sitting as a whole. The Constitution specifies that Congress must tally all electoral votes — and in this process Congress may lawfully disregard any electoral votes that it deems invalid.

Twice in history — in 1800-01 and 1824-25 — no candidate got the requisite majority of electoral votes, so Congress itself picked the president. But on two other prominent occasions, Congress acted as decisive judge of electoral-vote validity. In 1873, Congress refused to count three electoral votes that Georgia had cast for Horace Greeley because Greeley died after Election Day but before the state electors met. Because Ulysses Grant had an overwhelming majority of electoral votes, the Greeley issue was a sideshow. But this episode clearly confirms that Congress decides which electoral votes are valid. There is no difference between judging death and judging natural birth.

hayes-photo

President Rutherford B. Hayes. Library of Congress

More famously, in 1876-77, key electoral votes were contested and once again Congress, not ordinary courts, made the decisive ruling — handing the Oval Office to Rutherford B. Hayes over Samuel J. Tilden.

Under these precedents, if Americans do choose Cruz on Election Day, all he needs is for Congress to credit and count his electoral votes. And why wouldn’t Congress oblige him? Republicans control both houses. Why would congressional Republicans ever refuse to crown their party’s choice and America’s choice?

True, Cruz is — to put it mildly — not as popular among his Senate colleagues as was Senator John McCain (R-Ariz.) in 2008. Maybe Cruz’s colleagues are not willing to publicly announce today that they consider him eligible, a courtesy they extended to McCain, pre-election in 2008. Still, the very fact that the Senate registered its strong support for McCain’s eligibility in 2008 further illustrates that presidential eligibility should be decided by Congress and not by ordinary courts.

But will courts agree that they have no starring role on this question? After all, the Supreme Court leapt into the electoral-vote dispute of 2000. In a post-Bush v. Gore world, anything is possible. So let’s imagine scenarios in which a court might be tempted to get involved, in order of increasing plausibility of judicial intervention.

First, suppose Cruz wins on Election Day, is crowned the victor when Congress counts the electoral votes and is sworn in as president by Chief Justice John Roberts. He issues executive orders early on, and some person injured by some order balks. Suppose Cruz orders an army unit into action, and a soldier refuses to deploy and claims that the order is illegal because Cruz is illegal. The soldier sues, or is brought to trial. Either way, the court is asked to decide whether Cruz is legally the president.

It is hard to imagine a court taking the bait. In this scenario, the American people have already rendered their considered verdict on Election Day. The Congress has already rendered its verdict on electoral-vote-counting day. No appeal properly lies to any other court. Res judicata. Political-question doctrine. Next case.

Another scenario: Presidential ballots are being prepared in some state this fall. The Democratic Party or some minor-party candidate threatens to sue the state’s highest election official if the official lists Cruz on the ballot. The official would be delighted to keep Cruz off the ballot but does not want to take the heat. So the anti-Cruz official seeks a court’s permission to exclude Cruz.

U.S. Republican presidential candidate and U.S. Senator Ted Cruz speaks during a campaign town hall meeting in Whitefield, New Hampshire January 18, 2016.   REUTERS/Brian Snyder

Ted Cruz speaks during a campaign town hall meeting in Whitefield, New Hampshire, January 18, 2016. REUTERS/Brian Snyder

A sober court should think twice — thrice! — before jumping in. True, unlike our soldier scenario, the Congress has not yet weighed in, so there is no res judicata issue. But unless Congress itself enters the lawsuit and asks the court to keep Cruz’s name off the ballot — do the members of Congress dislike Cruz that much? — the court should butt out and deny the official the permission she seeks. No irreparable injury will be done if Cruz’s name appears on the ballot. If he loses, the issue goes away. If he wins, Congress can decide what to do, and Congress is the proper judge here.

Third, consider the strongest case for judicial intervention — a suit brought by Cruz himself. If some official somewhere threatens to keep him off the ballot, he might seek judicial help to get his name before the voters. Here is the key point: The court need not decide that Cruz is definitely 100 percent eligible. It should be enough that Cruz’s claim of eligibility is very plausible. It is a claim that deserves to be judged by the people themselves — on Election Day — and by Congress, thereafter, should Cruz win.

In other words, the trial judge should remind herself that the real court that should make the call under the Constitution is the electorate — the people’s court — with final appeal to Congress. The trial judge here is more like a law clerk, whose job should be to preserve the options for the clerk’s boss — the real decision-maker. So if our law clerk/judge is sure that Cruz is eligible — which, by the way, is the right answer — she can say so, and order Cruz’s name on the ballot. If the big bosses — the electorate or Congress — disagree, they can vote against Cruz because they think he is ineligible.

On the other hand, even if our law clerk/judge somehow thinks Cruz is ineligible, she surely must concede that there is a strong constitutional argument that Cruz is in law and fact a fully eligible natural-born citizen. That is what most experts believe, after all. So here, too, the law clerk/judge should put Cruz’s name on the ballot — and let the people and the Congress decide.

If there is a role for ordinary courts here, the role should be, ironically, to ensure that these courts are not the only or the last word on this issue. Rather, a sober and restrained judge’s aim should be to ensure that the decision about who the next U.S. president will be is made, in keeping with the Constitution and American traditions, by the people themselves, and by their duly elected national representatives.

18 comments

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i don’t think so. This issue seems serious enough to have the supreme court decide one way or another, not by the masses.

Posted by ofilha | Report as abusive

As I understand what this article is saying, until 1952, if a person was born out of the country, they were not considered a natural born citizen. Then, obviously, the drafters of the Constitution meant that you had to be born in the US to become president. A statute passed by Congress should not be able to change the clear intent of the Constitution – why would we need amendments if statutes suffice??
Constitutional issues should be decided by the court of public opinion? That sounds like an argument being made by someone who knows he’ll lose in a court of law, so wants to change the venue.
Not saying Ted Cruz should or shouldn’t be allowed to run. Just don’t agree with the “logic” of the article’s author.

Posted by warprints | Report as abusive

I’ve never understood how getting shot down on your first mission and held prisoner makes one a hero.

Posted by UgoneHearMe | Report as abusive

It does not matter the citizenship eligibility status of Ted Cruz for President. The only president he is going to be, is at the Shady Acres condo and senior living center, twenty years from now.

The guy is a cry-baby religious nut job with a victim complex.

Posted by Solidar | Report as abusive

Thanks for a thought provoking article.

Posted by CanyonLiveOak | Report as abusive

“Natural-born birthright citizenship” is a lot different than a “natural born citizen”. Rafael Cruz is not a “natural born citizen” of the US and therefore his is not eligible to become POTUS or VPOTUS. He is a citizen of the US by “statute” because his mother is a US citizen. Rafael Cruz is a natural born citizen of Canada because he was born in Canada. He was a Canadian citizen until June, 2014. That’s when he renounced his Canadian citizenship. And, as a side note: his father, Rafael Cruz Sr., didn’t become a US citizen until 2005. I think that his father was, until that time, a citizen of Cuba.

Posted by IamBAD1 | Report as abusive

When you have a written Constitution, any ambiguity as to the meaning of any of the words in the written Constitution can be resolved in only one of two ways: (1) interpretation by the judiciary (at the head of which is the Supreme Court) or (2) amendment of the Constitution to eliminate the ambiguity, which requires ratification by the states.

Anything else is just cocktail party conversation.

Posted by Bob9999 | Report as abusive

Professor Amar:
With all due respect, do you really think that the framers of the Constitution were willing to accept a foreign born
person as President of the United States? After fighting a revolutionary war against the British?
Just because a 20th century statute now accepts foreign born persons with American parents as “natural born” citizens,
That is hardly dispositive of what “natural born” means in terms of qualifying someone as President.

Posted by Connecticut61 | Report as abusive

“All thanks to a 1952 congressional statute that conferred natural-born birthright citizenship on various foreign-born children of American citizens.”

Mr. Amar knows darn well that the 1952 statute upon which Cruz’s citizenship is based makes exactly zero mention of “natural born citizens”.

Posted by GeorgeinSF | Report as abusive

The topic is moot. First, Ted Cruz will not be president and if he (or Trump) do become president then we are no longer the USA, but some kind of mimic of Nazi Germany. It will take the people of the US being just as selfish and hateful as the German people for this to happen. A place that can do that is not the country of the declaration of independence nor the constitution and the bill of rights.

Posted by brotherkenny4 | Report as abusive

If you don’t vote for Ted Cruz…. he’ll cry. Vote for Ted Cruz or you hate the Baby Jesus.

Posted by Solidar | Report as abusive

This is obscene. Many of our military are stationed overseas with their families in Asia and Europe. Any child born to them while stationed out of country can’t be President? My dad is retired military. All three of his children served in the Military – but my brother that was born in Japan isn’t a natural born citizen? That this is even a discussion makes me sick.

Posted by Benaiah_1 | Report as abusive

I thought the issue being that NEITHER his father nor his mother were American Citizens at the time. Is the issue whether or not the mother gave up her citizenship by becoming a Canadian citizen? Can we just go back and forth on this. I would imagine that once a born citizen of a nation one is always a born citizen of that nation but that appears not the case when dual citizenship is not allowed. What gives? Let the court decide this. Public opinion is one of scofflaws.

Posted by SixthRomeo | Report as abusive

If he was black, there would be no end to the republican crying and bawling about “citizenship.” That’s a code word like “inner city.” Inner city is not really about municipal density :)

Posted by Solidar | Report as abusive

This is a country of laws, and even as a foreign-born person Mr. Cruz must abide by our laws.

Posted by pbgd | Report as abusive

The many legal constitutional experts, on both sides, failed to mentioned the doctrines or the principles involved, regarding “natural born citizen” which follow the doctrine of “jus sanguine” (by law of blood) versus or compared against those of “native born citizen” that follows the doctrine of “jus soli” (by law of land or place).

Once these doctrines, are understood by everybody, there will be no more questions to ask, instead if any official presidential candidate is elected by majority of the whole US voters, but if the electoral voters in Congress chose a different candidates, there will be problems/troubles.

There is really a need to improve or amend the US Constitution to make the three major branches of governance (administration), law making (Congress and Senate), and justice (all Courts) be defined and coordinated to the benefit, protection and safeguard of the citizens as a primodial interest and concern of these three branches of government.

Posted by Allow | Report as abusive

The Supreme Court has said on at least two occasions that persons born out of the U.S., including those born to citizen parents, can ONLY be citizens by being naturalized. Rogers v. Bellei would not have made Ted Cruz a natural-born citizen for this exact reason. It said:

“naturalization, when used in its constitutional sense, is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization.”

Posted by ksdb | Report as abusive

Bundy should decide on this.

Posted by Macedonian | Report as abusive