Tokaji: Is Ted Cruz Eligible to Be President? Let’s Find Out

Donald Trump has revived the question whether Senator Ted Cruz is ineligible to serve as President due to his birth in Canada. A recent Trump Tweet asserts that Trump has standing and threatens to sue if Senator Cruz doesn’t stop “cheating” and “doing negative ads.”

Trump is right about one thing: whether Senator Cruz is constitutionally eligible to serve as President is unsettled. The issue cries out for judicial resolution, but it’s not clear whether a federal court could or would decide the question. Although Trump probably satisfies the constitutional requirements for standing, there are sound prudential reasons why a federal court might decide not to intervene.

Fortunately, there’s another way of adjudicating the issue. An action could be brought in state court, challenging Senator Cruz’s eligibility and seeking his removal from the state’s primary ballot. There’s at least one state – Pennsylvania – where the deadline for filing hasn’t yet expired, but if skeptics of Cruz’s eligibility want to sue there they must act quickly, no later than Tuesday. Litigating the case through the courts of Pennsylvania or another state would tee up the issue for Supreme Court review, which would be helpful in resolving the recurrent question of what it means to be a “natural born Citizen” eligible to serve as President.

The Constitutional Question Is Unsettled

Before getting into the mechanics of federal and state court lawsuits, it’s worth taking a moment to review the Cruz eligibility question and to consider why a prompt judicial resolution is desirable. Article II of the Constitution says that only a “natural born Citizen” or someone who was a citizen at the time of the Constitution’s adoption is eligible to be President. Since no one in the latter category still walks the earth, one must be a “natural born Citizen” to be President.

What does that term mean? Legal scholars disagree. Some maintain that Senator Cruz is eligible to serve, even though he was born in Canada, because his mother was a U.S. citizen. Neal Katyal and Paul Clement make this argument in a Harvard Law Forum piece, relying on colonial-era British statutes which made people British subjects if born abroad to British subjects.

Not so fast, says legal historian Mary Brigid MacNamanon. She claims that these statutes were a stark departure from the common-law rule that only those born in the U.S. were considered natural born citizens at the founding. According to MacNamanon, Cruz wasn’t a natural-born U.S. citizen but rather naturalized at birth, an argument she develops in this article.

Laurence Tribe takes an in-between position, arguing that the answer depends on how we think the Constitution should be interpreted. If one is an originalist, he claims, then Cruz isn’t eligible because he wouldn’t have been considered a natural born citizen at the founding. If one believes that the Constitution’s meaning changes over time, however, then Cruz should be deemed eligible according to Tribe.

The one thing that’s clear from this debate is that the question is unsettled, as Randy Barnett notes. The Supreme Court hasn’t ruled on the meaning of the term “natural born Citizen,” including its applicability to someone born outside the U.S. to a U.S. citizen parent. Nor is there a settled practice establishing that someone like Senator Cruz is or isn’t eligible.

Prompt Judicial Resolution Is Desirable

Just because there’s no settled answer to the question doesn’t necessarily mean that a court should intervene. There are non-judicial entities that might consider the question as Derek Muller has explained. On the other hand, there are serious problems with the most obvious non-judicial ways of resolving the question.

One possibility would be a statute or congressional resolution providing that Senator Cruz (or someone in his position) is a natural born Citizen. The Senate issued such a resolution in 2008, declaring that Senator McCain satisfied this requirement. But Majority Leader Mitch McConnell has said the Senate doesn’t plan to do the same for Senator Cruz. Even if it did, it’s ultimately the courts’ responsibility to “say what the law is.” Congress’s opinion on whether Senator Cruz satisfies the Constitution’s eligibility requirement wouldn’t bind the Supreme Court or lower courts.

That isn’t to say that Congress is powerless when it comes to determining a potential President’s eligibility. The Constitution vests Congress with responsibilities at the back end of the presidential selection process, which could include declaring a President-Elect ineligible. The constitutional requirements appear in Article II, Section 1, as modified by the Twelfth and Twentieth Amendments. After the presidential electors meet in their respective states, the states’ vote certificates are sent to Congress for counting. There’s also a statute, the Electoral Count Act of 1887, which regulates this process and allows objections to a President-Elect’s eligibility.

Article II and the Electoral Count Act offer a second extra-judicial means of deciding Senator Cruz’s eligibility. If he winds up winning the general election but Congress thinks him ineligible, it could decline to count the votes for him and make someone else President. Needless to say, this is not a desirable way of deciding what “natural born Citizen” means, much less choosing a President. It would be a nightmare for voters to elect someone President, only for Congress to override the voters’ choice by declining to count that candidate’s electoral votes. If that weren’t enough, there are also constitutional questions surrounding the Electoral Count Act, as I’ve previously noted.

There’s a third extra-judicial possibility. The judgment whether Senator Cruz is eligible to serve might be made by voters themselves in primaries, caucuses, and the general election. The idea of letting the people decide has intuitive appeal, but serious problems. Ordinary citizens aren’t and can’t reasonably be expected to become constitutional experts. Judges are much better suited to determine what the Constitution means. Leaving it to the people could also lead to unfair attacks by an opponent – just what some people think Trump is now doing to Cruz. If Senator Cruz really is constitutionally eligible, then it would be unfair to deny him votes due to the specter of his candidacy ultimately being invalidated. And if he isn’t eligible, then it would be better for voters to make their choice solely from the pool of eligible candidates.

For all these reasons, the extra-judicial means of resolving the question of Senator Cruz’s eligibility are unsatisfactory. It would be better to have a court decide the question. And it would be best to get that judicial resolution promptly, before too many people decide whether to vote for someone who might or might not be eligible.

State Court Is the Best Forum

In what court should a lawsuit be filed? Given that the question of Senator Cruz’s eligibility arises under federal law, the most obvious answer is federal court. Sure enough, voters have filed federal lawsuits this election cycle in Utah and Texas challenging Senator Cruz’s eligibility. We also saw federal lawsuits eight years ago challenging Obama’s and McCain’s eligibility to serve. Those cases were dismissed, properly in my opinion, for lack of standing. There are also good reasons why federal courts might stay out again this time, especially in lawsuits brought by voters.

To have standing to sue in federal court, one must satisfy both constitutional and prudential constraints on the federal courts’ power to decide cases. Article III of the Constitution has been understood to impose three requirements for standing: (1) an injury in fact, one that is real and immediate rather than conjectural or hypothetical, (2) causation, meaning that the injury is fairly traceable to defendants’ conduct, and (3) redressability, meaning that a favorable court decision would remedy the claimed injury. In addition to these constitutional constraints, there are also prudential standing requirements, constraints that federal courts have imposed on themselves. It’s doubtful that an ordinary voter would have standing to challenge Senator Cruz’s eligibility, as I explained here.

What if Trump sued, as his tweet threatens? There’s a more plausible argument that he has standing, but it’s not completely clear. There are prudential reasons why a federal court should hesitate to get involved. To start with, consider what a federal lawsuit by Trump would look like. He would presumably seek injunctive relief against Senator Cruz (enjoining him from running for President) and election officials (requiring that they remove Cruz from the ballot). Trump would probably seek declaratory relief as well, in the form of a declaration that Senator Cruz isn’t constitutionally eligible.

Trump probably satisfies Article III standing requirements, as Rick Hasen explains. He could assert a competitive injury, arising from the potential loss of presidential delegates and therefore his opportunity to win the Republican nomination due to a constitutionally ineligible opponent running. The injury is traceable to defendants’ conduct (Cruz in running for President and state election officials allowing him on the ballot), and would be redressed by the relief he can be expected to seek.

Trump’s hypothetical lawsuit is shakier is on the prudential requirements for a federal court to decide a case. These are somewhat mushier, making it difficult to predict the outcome, but one requirement for prudential standing is the general bar against federal courts deciding a “generalized grievance.” The grievance here is quintessentially generalized, in that all U.S. citizens have a shared and equal interest in not having a President who is constitutionally ineligible to serve.

The rationale for prudential standing also tends to support a federal court staying out. The Court has explained that prudential standing arises from the concern that “courts would be called upon to decide abstract questions of wide public significance even though other government institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” There are no “individual rights” at stake in the sense that the term is usually used. This isn’t, for example, an individual’s claim that she’s been discriminated against or that her right to vote has been denied, but a structural harm.

The question is whether some other “government institution[]” is more competent to address the question. Turns out there is: state court. That’s the forum in which a candidate would ordinarily seek to have a competitor excluded from the ballot if he or she failed to satisfy the requirements for that office. The fact that state courts are usually the ones that decide whether or not to disqualify a candidate would probably make a federal court reluctant to issue this form of relief. While it might seem strange to have a state court deciding a question of federal law, they commonly do just that under our federalist system.

The arguments for a state court adjudicating the dispute are especially strong when it comes to presidential elections, given that Article II of the Constitution grants the states – specifically the “state Legislature” – authority over the manner in which its presidential electors are appointed. As I’ll now explain, there are state laws that provide judicial procedures through which a candidate’s eligibility can be challenged.

Sue in Pennsylvania, Then Take It Up

While there may be multiple states in which Senator Cruz’s eligibility could be challenged, I’ve looked at two. The first is Ohio, which has its primary on March 15. Ohio law allows for a written protest against a candidate who seeks to run in a primary, which may be filed by any qualified voter who is a member of the candidate’s party. ORC 3513.05. A protest may seek to have a candidate’s name removed from the ballot on the ground that “the candidate’s candidacy or the petition violates …. any requirement established by law.” ORC 3501.39. This language is broad enough to encompass both federal and state law. The problem is that Ohio’s deadline for filing a protest is 74 days before the primary – that is, early January. ORC 3513.05. It’s therefore too late to sue in Ohio.

Fortunately for skeptics of Senator Cruz’s eligibility, there’s at least one state where a challenge could still be brought. Pennsylvania will hold its primary on April 26. The last day for candidates to file nominating petitions was yesterday, February 16. See here and here. Under Pennsylvania law, a candidate’s nominating petition must include an affidavit affirming eligibility for the office sought. See 25 P.S. 2870; In re Pippy, 711 A.2d 1048 (1998). A registered elector of the party has standing, and state courts may rule on the eligibility of candidates for federal as well as state office. In re Duncan, 102 Pa. Comwlth 99 (1982). Someone objecting to a candidate must file a petition within one week of the due date for nominating papers, 25 P.S. 2937 – that is, by February 23.

One of the grounds for objection is that the candidate’s nominating papers contain false statements. In re Cianfrani, 359 A.2d 383 (1976). A candidate’s statement that he is eligible when in fact he is not would be false, rendering the candidate’s nomination invalid and requiring a court to set it aside. Pippy, 711 A.2d at 1051. In Pennsylvania as in Ohio, this procedure may be used to challenge a candidate’s qualifications for office. See, e.g., DeNome Election, 3 Pa. D. & C.3d 583 (1977). Pennsylvania state courts would thus seem to provide an appropriate forum for litigating the question of Senator Cruz’s eligibility – but only if an objection is filed by Tuesday.

One might understandably worry that it would be desirable to get a ruling from a federal court, ideally the Supreme Court. I agree. The meaning of the “natural born Citizen” clause is a question of federal law, after all, one that has arisen with respect to three presidential candidates in the past three election cycles. A state court ruling would be helpful, but only a Supreme Court ruling could dispel the uncertainty surrounding its meaning.

The good news is that review of a state court decision on Cruz’s eligibility could be sought in the U.S. Supreme Court. The Supreme Court’s jurisdiction to review federal law questions is broader than that of lower federal courts. In particular, the Supreme Court can review a state court’s erroneous interpretation of federal law, even if standing would have been lacking had the lawsuit originally been brought in a federal district court. See ASARCO v. Kadish, 490 U.S. 605 (1989).

This means that the Supreme Court could review the decision of Pennsylvania’s courts on the meaning of the “natural born Citizen” clause, if a timely state court action is brought and litigated through that state’s system, resulting in a judgment on the merits. It would be helpful for the Supreme Court to rule on the issue, whatever the outcome in state court, so we can get a definitive ruling on who’s a “natural born Citizen” for this and future presidential elections. Fortunately, it’s a clean issue of law, which should facilitate expedited review.

In my view, it would be a public service for someone to bring an action challenging Senator Cruz’s eligibility in Pennsylvania or another state court, to clarify what “natural born Citizen” means. Counterintuitive though it might seem, state court is the most promising forum for such an action. The issue could then be litigated up to the U.S. Supreme Court, which would be well-advised to grant certiorari so we know who is and isn’t eligible to serve as President, an important federal question if there ever was one.

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