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
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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.

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