From The Hill: Constitutional lawyer: Cruz ‘right’ about citizenship

A prominent lawyer not only argues that Senator Cruz is likely a "natural born citizen" as stated in the Constitution, he argues the Supreme Court is unlikely to rule on the question.

- Click here for the article.

Constitutional lawyer Floyd Abrams says Republican presidential candidate Ted Cruz is on the right side in the argument over whether he can run for president.

“I think Senator Cruz is right that ‘natural-born’ as understood would more likely than not be held to mean someone that didn’t need to be naturalized, didn’t have to go through any procedure to be an American, as of course he did not because he had an American mother,” Abrams told host John Catsimatidis on “The Cats Roundtable” on New York’s AM-970 on Sunday.

Despite his belief that Cruz is a natural-born citizen, Abrams said the Supreme Court likely would not hand down a decision if petitioned in the case.

“I’ll tell you what I think they would say: I think they would say we’re not going to rule,” he said. “I think they would say, we’re going to treat this as what we call a political question. Congress can decide, the public can decide, but we’re not going to pass on the issue of whether these words are of such magnitude as to disqualify someone for the presidency.

“I think that’s where it would be left. I think it will ultimately be, even if Senator Cruz were to be elected president, one that the courts would just stay away from,” he added.

 

From the Tampa Bay Times: Marco Rubio seeks to dismiss court challenge to his eligibility to be president

As pointed out in a previous post, Senator Rubio's eligibility to hold office is also being challenged in court. The Tamps Bay Times lays out the conflict.

- Click here for the article.

Here's the a bit from the article:

Rubio was born in Miami in 1971. But Rubio's Cuban immigrant parents did not become U.S. citizens until 1975.

That’s convinced so-called birthers to conclude Rubio is ineligible under Article 2 of the Constitution, which says "no person except a natural born citizen … shall be eligible to the Office of President."
. . . Birthers rely on various passages to back up their argument. One is the treatise The

Law of Nations by Swiss philosopher Emer de Vattel, which they say influenced the founding fathers. "The natives, or natural-born citizens, are those born in the country, of parents who are citizens," Vattel wrote.

They also cite the U.S. Supreme Court, which in the 1875 case Minor vs. Happersett, used the term "natural born citizen" in reference to persons who were born in the United States, of U.S.-citizen parents.

"The arguments aren't crazy," said Georgetown law professor Lawrence Solum, an expert in constitutional theory. But, he added, "the much stronger argument suggests that if you were born on American soil that you would be considered a natural born citizen."

The article points out that Rubio took the claim seriously enough - they go back at least to 2011 - to prepare a legal argument stating that he is a "natural born citizen according to the Constitution. It is contained in his motion to dismiss the lawsuit against his eligibility.

- Click here for it.

I'll note briefly that in page 3, Rubio argues that the plaintiff lacks standing to bring the lawsuit forward. They argue - among other things - that standing requires that the plaintiff demonstrate a special injury, which he has not suffered.

More on this as the semester progresses.

Schwartz, et al v. Cruz

Here is a link to the document filed challenging Senator Cruz's eligibility to hold the office of the president - apart from actually running for it of course. 2305 students should expect to pour over this in class.

- Click here for it.

It was filed in the US District Court for the Southern District of Texas Houston Division - click here for the office.

The lawsuit was filed by Houston lawyer Newton Boris Schwartz, Sr. - I can't much on him at the moment. The suit claims that he has filed it:

. . . Individually and/or as (b) Class Representative and/or (c) on behalf of all eligible qualified 50 states and nationally United States Registered, eligible and Qualified Voters for Voting in: (1) all 50 State Caucus and primaries in 2016; (2) the 2016 Texas Primary elections; and (3) General National 2016 Electoral Presidential and Vice president election on November 1, 2016.

The court is pretty picky about standing - who can file a suit and why, is that person suffering an actual harm - so I'm curious whether they would recognize his right to file the suit.

The suits asks for a declaratory judgement - which can be defined as follows:

A binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court. A declaratory judgment does not provide for any enforcement, however. In other words, it states the court's authoritative opinion regarding the exact nature of the legal matter without requiring the parties to do anything.

Here is what they are asking the court to do:

This procedural Declaratory Judgment prays for an declaratory Judgment of the (1) status (2) qualifications and (3) eligibility or ineligibility of defendant for election to the office of the President and vice President of the United States under Article II, Section I, Clause 5 as original enacted and adopted and ratified by the requisite number of then thirteen states and not amended or repealed to date.

It is undisputed, by all legal scholars, there is no U S Supreme Court decision or precedent: determinative of the following agreed facts of this case and controversy. “Natural born citizen” has never been defined. This a case of first impression. Harvard professor Laurence Tribe on January 11-12, 2016 national including CNN media program opined “…this question is completely unsettled…”.

The document goes in for another 73 pages - I've yet to gloss through it, but will soon.

This didn't take long - from The Hill: Attorney files 'birther' lawsuit against Cruz

This will be worth following. I assume it will go through the courts quickly, but who knows? The article reports that Marco Rubio's eligibility is also being challenged.

- Click here for the article.

A Texas attorney has filed a lawsuit questioning Ted Cruz’s eligibility to serve as president.

The federal case filed in Texas argues that the question must be presented to the Supreme Court for fair adjudication instead of left up to popular consensus.
“The U.S. Constitution is not a popularity document for fair weather only,” says the lawsuit filed by Newton Schwartz.

“However persuasive one finds each side in this debate, the final decision ultimately rests in the hands of five or more of nine Justices on the Supreme Court as mandated by the Constitution.”

Bloomberg News first reported on the suit, which challenges Cruz’s standing because he was born in Canada to an American mother.

The suit argues that the constitutional mandate that the president must be a “natural-born citizen” has never been settled in court and warned that the “mounting questionings crescendo” must be settled as soon as possible. It goes on to note the “persistent doubt” about President Obama’s eligibility.

In his closing, Schwartz warns that the failure to hear the case could amount to another Bush v. Gore situation, where a contested election ended up in the hands of the Supreme Court.

Donald Trump has repeatedly questioned Cruz’s eligibility for the White House in the run-up to the Iowa caucuses, on Feb. 1. The two sparred over the issue during Thursday night’s debate, with Trump warning that the threat of similar lawsuits could jeopardize the Texas senator's bid.

But Cruz shot back by arguing that by the most extreme “birther” theories, Trump himself wouldn’t be eligible because his mother was born in Scotland.

Critics have also filed a suit in Florida questioning Marco Rubio’s eligibility, arguing that he’s ineligible because his parents were both not citizens at his time of birth in Miami. Rubio’s lawyers rebutted that argument in a legal filing this week.