Could Trump Get the Courts To Rule on Cruz’s Citizenship?

It’s a long shot, but he might have a better chance than anyone else, legal experts say.

Donald Trump and Ted Cruz
AP Foto/Rainier Ehrhardt
Sam Baker
Add to Briefcase
Sam Baker
Feb. 4, 2016, 8 p.m.

If Donald Trump really wants to challenge Ted Cruz’s citizenship in court, a past ruling on Barack Obama’s citizenship might be his best chance to make it past the courthouse door.

Trump has repeatedly raised Cruz’s Canadian birth in the context of some potential legal challenge—he initially said he was concerned that Democrats would get the courts to block Cruz from taking office, if he’s the nominee. And he “suggested” that Cruz should proactively seek a ruling on his eligibility. (Easier said than done, according to legal experts.)

At least two voters have already filed lawsuits claiming that Cruz isn’t eligible for the presidency because he was born in Canada. Most legal experts disagree. They say those lawsuits will almost certainly be dismissed, and would be dismissed even if Cruz’s argument were substantially weaker.

Even though the Constitution is vague about what constitutes a “natural-born citizen,” it’s almost impossible for an average voter to pursue a lawsuit that would allow the courts to interpret that phrase. Hardly anyone—potentially, literally no one—has the legal standing to bring such a challenge against a candidate.

To bring a lawsuit in federal court, you have to show you suffered a real injury—and having the option to vote for someone you believe to be ineligible is not a real injury.

The only way the courts would likely get involved in Cruz’s case, several legal experts said, would be for a state official somewhere to keep Cruz off the ballot in that state, and for Cruz to sue that official. He certainly would have an injury to point to, and thus would have standing.

“I think in federal court, it would be really real hard for someone other than Cruz to have standing,” said Jonathan Adler, a law professor at Case Western Reserve University.

But Derek Muller, a law professor at Pepperdine University, sees another, albeit even more remote possibility: Trump, or another of Cruz’s GOP rivals, could sue.

Trump would almost certainly lose, Muller said, but he might at least have the standing to bring a legal challenge and actually get the issue into the courts.

There’s a thin precedent from the challenges to President Obama’s eligibility—specifically, the suit filed by Alan Keyes, who ran for president in 2008 as the nominee of the American Independent Party. Keyes was one of the plaintiffs in one of the unsuccessful challenges to Obama’s citizenship, but the courts treated him somewhat differently because he was, at least technically, a rival candidate.

An opposing candidate might be able to argue that he or she lost votes—an injury—to someone who wasn’t eligible to appear on the ballot.

“The notion that you are on the ballot and there are other folks on the ballot who should not be there … that could be enough” to establish standing, Muller said. “It’s not wholly speculative that when you drop a candidate off the ballot, some of them are going to come toward you.”

In the Obama case, a federal district court said political opponents like Keyes were “the only category of plaintiffs who potentially satisfy the injury-in-fact requirement,” but that Keyes should have filed his suit before Obama took office, when there was something the courts could do.

Again, Muller said, nothing suggests that the courts would agree with Trump about Cruz’s actual eligibility for office. And he would not necessarily have the standing to bring a lawsuit.

But if the goal is to keep a political controversy alive and legitimize it with the appearance of an open legal question, Trump’s best bets might be either to file a lawsuit himself, or find a supportive state official willing to boot Cruz from the ballot. He might have a slightly better chance than anyone else to get the courts involved at all—but even those odds are still pretty terrible.

“It’s very unlikely. There are so many other stages in the political process where this can be resolved that I think the courts would be extremely reluctant to intervene,” Muller said.

What We're Following See More »
TO CLOSE TEST SITES
North Korea Says It Will Suspend Nuclear Tests
10 hours ago
THE LATEST

"North Korea says it has suspended nuclear and long-range missile tests and plans to close its nuclear test site. The North’s official Korean Central News Agency said the suspension of nuclear and ICBM tests went into effect Saturday." The announcement comes shortly before Kim Jong Un "is set to meet South Korean President Moon Jae-in in a border truce village for a rare summit aimed at resolving the nuclear standoff with Pyongyang."

Source:
POTENTIAL CONTEMPT CHARGE
Nadler: Goodlatte Could Subpoena Rosenstein
2 days ago
THE LATEST

"The top Democrat on the House Judiciary Committee says Chairman Bob Goodlatte, R-Va., is poised to subpoena the Justice Department for former FBI Director James Comey’s memos, which the agency so far has failed to produce. Rep. Jerrold Nadler, D-N.Y., warned such a move puts Deputy Attorney General Rod Rosenstein in jeopardy of being placed in contempt of Congress and the special counsel investigation of being shut down prematurely."

Source:
NO NEW FUNDING INCLUDED
House Ag Committee Passes Farm Bill
2 days ago
THE DETAILS
"On a party-line vote, the House Agriculture Committee approved a five-year farm bill on Wednesday that tweaks the supports now in place—a promise of certainty, leaders said, during a period of low commodity prices and threats of a trade war with agriculture on the front line." The bill includes no new funding over the last farm bill.
Source:
WOULD ASSURE ANYONE PARDONED BY TRUMP CAN BE PROSECUTED BY STATE
Schneiderman Urges NY Lawmakers to Close “Double Jeopardy Loophole”
2 days ago
THE LATEST
INTRO’d LAST NIGHT
Ryan Tamps Down AUMF Talk
3 days ago
THE LATEST

Referring to the AUMF introduced by Sens. Tim Kaine and Bob Corker Monday evening, House Speaker Paul Ryan said Tuesday "he won’t allow any bill to come to the House floor that he thinks would restrict military commanders’ ability to fight." Ryan "defended the legality of U.S. military strikes last week against chemical weapons-related sites in Syria, saying President Trump had the authority to order them under the Constitution’s Article II commander-in-chief powers."

×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login