Birthers Beware: Why Court Challenges To Ted Cruz’s Citizenship Can't Win

They can't win in federal court because they shouldn't even be heard in federal court, according to columnist Tamara Tabo.

Righteous-IndignationFor several weeks now, GOP presidential candidate Donald Trump has stoked concerns about whether his opponent Ted Cruz, born in Canada to an American mother, could meet the constitutional requirement that the President of the United States be a “natural born Citizen.”

Last Friday, an octogenarian Houston attorney named Newton B. Schwartz Sr. filed a motion for declaratory judgment in U.S. district court, asking for a legal determination of Cruz’s eligibility.

But no matter what Article II, Section I, Clause 5 means, or what motivates “Cruz birthers,” court challenges to Cruz’s qualification for President are doomed to fail.

They can’t win in federal court because they shouldn’t even be heard in federal court.

Courts Love Answering Your Questions. Just Ask!

Beneath Donald Trump’s bluster and sensationalism is a shrewd guy who knows how to work a room.

Just not a courtroom.

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On January 7, Trump had offered Cruz “free legal advice” via Twitter:

.@SenTedCruz Ted–free legal advice on how to pre-empt the Dems on citizen issue. Go to court now & seek Declaratory Judgment–you will win!

When CNN’s Wolf Blitzer interviewed Trump earlier this month, Trump told him, “I’d go and seek a declaratory judgment if I was Ted.”

Questioned further, Trump explained (trumpsplained?):

“You go to federal court to ask for a — what’s called a declaratory judgment. You go in seeking the decision of the court, without a court case.

You go right in. You go before a judge. You do it quickly. It can go quickly. Declaratory judgment, it’s very good. I’ve used it on numerous occasions. I’ve been pretty good with it, actually.

[ . . . ]

So, what you do is you go in immediately, like tomorrow, this afternoon. You go to federal court, you ask for a declaratory judgment. That’s — you want the court to rule. And then once the court rules, you have your decision.”

 

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Is Trump talking about a declaratory judgment in federal court or a quickie wedding ceremony from a county justice of the peace?

According to Trump’s breezy description of court procedure, declaratory judgments are not only conveniently available during your lunch break, but you can also get one “without a court case.”

What Trump describes, however, actually sounds a whole lot more like an advisory opinion than a declaratory judgment.

That makes his advice to Cruz considerably less awesome.

Federal-court advisory opinions are, of course, unconstitutional. They violate the “case or controversy” requirement of Article III, Section II of the U.S. Constitution.

Advisory opinions announce the court’s view on legal issues, but there is no underlying lawsuit or justiciable case, only hypothetical or abstract guidance.

In a declaratory judgment, on the other hand, the court provides a statement of the legal rights or duties between actual adversarial parties in a legal dispute.

It’s true that folks who anticipate that another party will soon file suit against them often file for declaratory relief in order to forestall the future litigation.

Nevertheless, Article III’s case or controversy requirements apply to declaratory judgments, as they do to all other cases that may be heard by federal courts. This means that, along with satisfying factors like ripeness, mootness, standing, etc., declaratory actions need to have actual legally adverse parties.

So, it’s not altogether clear whether Cruz could have followed Trump’s legal advice, even if Cruz wanted to.

Who did Donald Trump think Ted Cruz should have named as defendant in the declaratory action Trump kept urging Cruz to file? Who was the adverse party?

When Trump began suggesting that Cruz seek a declaratory judgment, there may have been debate wafting around regarding his eligibility, but wafting debate does not an Article III case or controversy make.

The Curious Stylings of Newton B. Schwartz Sr.

Ted Cruz (Photo by Steve Pope/Getty)

Ted Cruz (Photo by Steve Pope/Getty)

Late last week, Newton B. Schwartz Sr., a lawyer who recently faced some legal problems of his own, filed a complaint in federal court, calling for declaratory judgment, naming Cruz as the sole defendant, alleging that Cruz failed to meet the natural born citizen requirement.

The Schwartz complaint reads like a poorly plagiarized undergraduate paper. One need not be a snoot to see that Schwartz’s prose would benefit from a heap of well-placed commas.

But so what if Newton Schwartz couldn’t punctuate his way out of a brown paper bag? How solid is he on the law?

Not very.

Standing: When Caring Is Not Enough

The 28-page complaint would be much shorter if not for pages of semi-coherent digressions ranting about Cruz’s politics, the “lady Texas lawyers and judges” involved in the Fifth Circuit’s recent abortion cases, and Tea Party conspiracies.  

It’s a weird read, and Schwartz is no fan of conservatives.

Ironically, Schwartz’s complaint fails for the same reason so many similar legal challenges from conservative anti-Obama Birthers like Orly Taitz failed. Schwartz lacks standing to sue.

In order for a plaintiff to have standing, the plaintiff must have suffered injury-in-fact. The plaintiff’s harm must be concrete and particular, not a mere generalized grievance.

Without a specific statutory right of action, simply being a concerned voter like Schwartz is not enough of an individual harm to support standing.  

On the other hand, in Barnett v. Obama, the Ninth Circuit held that the plaintiffs who were Barack Obama’s rival Presidential candidates lacked standing to challenge his eligibility, not because their grievance was too general, but because they no longer had an interest in fair competition by the time they filed suit. By then, Obama had already been sworn in as President.

So, while ordinary voters like Schwartz don’t have standing, Donald Trump might.

If The Personal Is Political, Then The Court Won’t Answer Your Personal Question

Even if the court found that a plaintiff — Trump or whomever — had standing, the political question doctrine would likely keep the court from hearing the case.

The doctrine divests federal courts of authority over matters that pose political questions.  

According to the U.S. Supreme Court in Baker v. Carr, among the characteristics of a political question are a “textually demonstrable constitutional commitment of the issue to a coordinate political department” and the “impossibility for a court’s independent resolution without expressing a lack of respect for a coordinate branch of government.”

Deciding whether Cruz’s circumstances disqualify him from serving as President probably counts.

In 2008, critics questioned whether Senator John McCain counted as a “natural born citizen,” since he was born in the Panama Canal Zone in 1936.

In Robinson v. Bowen, a court held that plaintiffs challenging McCain’s qualifications lacked standing, but also that the case presented a non-justiciable political question.

The Constitution and federal law establish a system for determining who’s eligible to be President. The system involves state legislatures, electors, and ultimately Congress.

Article II, Section 1 and the Twelfth Amendment lay out the Electoral College system. The Twentieth Amendment gives Congress the job of handling the disqualification of a President elect. Title 3, Section 15 of the U.S. Code provides Congress a specific procedure for calling for and handling objections that may arise after the President of the Senate announces the winner of the electoral vote count.

If the judicial branch were to inject itself into the fray, it would be reaching beyond its proper role.

Any legal resolution to the question of Ted Cruz’s citizenship must involve a justiciable case — no advisory opinions, no generalized grievances, no political questions. Unless Donald Trump or other Cruz critics can overcome that burden, they simply can’t win. In fact, they can’t even be heard.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit and ran the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.