Ted Cruz, birtherized.

Stoking the flames of a political base that buys into birtherism can yield some diabolical karma.  Donald Trump – the Original Birther – is now extending his bizarre birtherism to Ted Cruz.  CNN has a piece here, following Trump’s appearance with Wolf Blitzer this evening.  Cruz was born in Canada to a mother who was an American citizen; his father was born in Cuba.  Article II of the Constitution requires that the President be a “natural born citizen.”  Not naturalized; natural born.

Of course, he’s being as polite about it as Trump can possibly be.  He is not saying that Senator Cruz is definitely not a natural born citizen, but only that there is a significant question about it.  He doesn’t know – that’s the attack.  It is how Trump attacks those he otherwise likes but still needs to attack.  Rather than making it explicit, he couches it as an implication, an open question, an insinuation.  He has done this to Cruz already, implicitly questioning Cruz’s evangelical bona fides by saying that few evangelicals come from Cuba (note: 1) Ted Cruz is not from Cuba, he was born in Canada; 2) yes, Cruz’s father is from Cuba, but he is also an evangelical pastor – it doesn’t really matter how many evangelicals come from Cuba, once you reach the position of pastor, you’ve probably passed the test; 3) do a lot of evangelicals come from Queens?; and 4) what does any of that have to do with Ted’s own religious beliefs?).

The Supreme Court has never tested this question of who is a “natural born citizen.”  Paul Clement and Neal Katyal co-authored an interesting piece in the Harvard Law Review Forum early in 2015, which is here.  These are both men whose work I admire and I think is worthy of serious consideration (both are former Solicitors General; Clement was the SG during my time at the Justice Department and with whose office I worked on a few matters; Katyal was a former professor of mine at Georgetown).  Citing ample historical legal precedent, they argue that the constitutional text has been understood to mean that a person who is born abroad to a parent who is an American is a natural-born citizen.  This, they say, includes other presidential candidates like John McCain (born in the Panama Canal Zone), Barry Goldwater (born in Arizona before it was a State); and George Romney (born in Mexico).

Today, as noted in the CNN article, Trump suggested that Cruz should ask a court for a “declaratory judgment,” saying that he is a natural born citizen.  I’m sure other law profs will weigh in on this, but suffice it to say, one person cannot just walk into a federal court and ask for this kind of a ruling.  Federal courts do not render advisory opinions.  To do so would violate the separation of powers, something for which Trump has demonstrated neither affinity nor understanding.  Although declaratory judgments are not advisory opinions, to avoid the advisory opinion bar, there must at least be adverse parties with a concrete legal dispute.  That line is a thin one, to be fair.  But to my knowledge, no other candidate is questioning Cruz’s eligibility and I am unaware of any person with standing who has filed a lawsuit in federal court.  That might yet happen, but I don’t think that is what Trump was suggesting (though he may have been thinking about a suit in state court, and some state courts do render advisory opinions).

Trump’s sister is a federal judge.  Perhaps she will call him tonight with an explanation of the limits on federal judicial power.

As for Cruz, and this (via Politico): again, well-played.

UPDATE: Randy Barnett has this piece up at VC, arguing that “who is the sovereign, not the territory, is what matters.” So, he concludes, Cruz is a natural born citizen.  Jonathan Adler has a post there, too, drawing the same conclusion and citing Clement & Katyal.

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