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 »
TRUMP CANCELS FLORIDA TRIP
Congress Heads Back to Work to End Shutdown
5 hours ago
THE LATEST

"The Senate was expected to be back in session at noon, while House lawmakers were told to return to work for a 9 a.m. session. Mr. Trump on Friday had canceled plans to travel to his private resort on Palm Beach, Fla., where a celebration had been planned for Saturday to celebrate the anniversary of his first year in office."

Source:
CLOTURE FAILS
Government Shutdown Begins, as Senate Balks at Stopgap
7 hours ago
THE LATEST

"A stopgap spending bill stalled in the Senate Friday night, leading to a government shutdown for the first time since 2013. The continuing resolution funding agencies expired at midnight, and lawmakers were unable to spell out any path forward to keep government open. The Senate on Friday night failed to reach cloture on a four-week spending bill the House had already approved."

Source:
HUNDREDS OF THOUSANDS IN SUSPICIOUS CHECKS FLAGGED
Mueller’s Team Scrutinizing Russian Embassy Transactions
2 days ago
THE LATEST
PRO-TRUMP SPENDING COULD VIOLATE FECA
FBI Investigating Potential Russian Donations to NRA
2 days ago
THE DETAILS

"The FBI is investigating whether a top Russian banker with ties to the Kremlin illegally funneled money to the National Rifle Association to help Donald Trump win the presidency." Investigators have focused on Alexander Torshin, the deputy governor of Russia’s central bank "who is known for his close relationships with both Russian President Vladimir Putin and the NRA." The solicitation or use of foreign funds is illegal in U.S. elections under the Federal Election Campaign Act (FECA) by either lobbying groups or political campaigns. The NRA reported spending a record $55 million on the 2016 elections.

Source:
DISCLOSURES MORE THAN DOUBLED
Mueller Investigation Leads to Hundreds of New FARA Filings
2 days ago
THE LATEST

"Hundreds of new and supplemental FARA filings by U.S. lobbyists and public relations firms" have been submitted "since Special Counsel Mueller charged two Trump aides with failing to disclose their lobbying work on behalf of foreign countries. The number of first-time filings ... rose 50 percent to 102 between 2016 and 2017, an NBC News analysis found. The number of supplemental filings, which include details about campaign donations, meetings and phone calls more than doubled from 618 to 1,244 last year as lobbyists scrambled to avoid the same fate as some of Trump's associates and their business partners."

Source:
×
×

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