It was only a matter of time before Donald Trump threw Ted Cruz under the birther bus now that they’re duking it out to win Iowa. Behold, that time came on Tuesday. Cruz was born in Calgary, Canada, in 1970 to an American mother, and although it clearly pained Trump to bring it up, he just had to do it. For the better of the Republican Party, of course.
“Republicans are going to have to ask themselves the question: ‘Do we want a candidate who could be tied up in court for two years?’ That’d be a big problem,” Trump said when asked about the topic. “It’d be a very precarious one for Republicans because he’d be running and the courts may take a long time to make a decision. You don’t want to be running and have that kind of thing over your head.”
Trump added, “I’d hate to see something like that get in his way. But a lot of people are talking about it and I know that even some states are looking at it very strongly, the fact that he was born in Canada and he has had a double passport.”
Is this little hiccup too good to be true? Maybe not.
It comes down to a question of what the constitutional requirement of being a "natural born citizen" means. Legal scholars have typically interpreted that to mean someone who was a citizen at birth, which Cruz was based on his mother's U.S. citizenship. However, one nagging fact remains: the Supreme Court has never ruled on exactly what “natural born citizen” means. As Sarah Helene Duggin, a law professor who has authored several articles on the topic, pointed out:
“In the absence of a definitive Supreme Court ruling — or a constitutional amendment — the parameters of the clause remain uncertain,” she wrote.
So is it too much to ask for the High Court to finally have cause to weigh in on the matter? Maybe not. Here’s Duggin again discussing why some past lawsuits questioning a candidate’s citizenship based on their birthplace were never considered.
Standing issues led to the dismissal of lawsuits filed in federal courts in New Hampshire and California challenging Senator McCain’s natural-born status in 2008 (Hollander v. McCain, Robinson v. Bowen), as well as to the dismissal of claims brought by a Guyana-born naturalized citizen who argued that the Fifth and 14th Amendments effectively repealed the natural born citizenship clause (Hassan v. Federal Election Committee).
In order to have the legal “standing” to bring a suit, a plaintiff must prove that the defendant is causing them harm, or as this Cornell Law Review article explains more precisely:
Under modern standing law, a private plaintiff seeking to bring suit in federal court must demonstrate that he has suffered “injury in fact,” that the injury is “fairly traceable” to the actions of the defendant, and that the injury will “likely be redressed by a favorable decision.”
As Trump noted back in March regarding Cruz’s birthplace:
"It’s a hurdle and somebody could certainly look at it very seriously. He was born in Canada […] you’re supposed to be born in this country, so I just don’t know how the courts would rule on it."
Neither do we, Donald. But we certainly support your intellectual curiosity on this singular topic.