On Monday, Sen. Ted Cruz (R-TX) took the step of releasing his long-form birth certificate. This was seen by one reporting establishment as not only a confirmation that he might seek the US presidency but also to apparently “undercut critics” as to his eligibility for the high office.
Instead, it evoked precisely the opposite reaction.
Radio and TV personality Glenn Beck suggested that this is now a “new birther movement” and that Hillary had been involved in the original Obama birther movement.
Radio personality and constitutional scholar Mark Levin broke ranks with the birther wing of the Tea Party wing of the GOP by stating that the eligibility issue for Sen. Cruz would be a legal issue to be determined by the courts.
Sen. Cruz responded to his initial action on radio by stating that he didn’t know for sure if he was also a dual citizen, both of the United States and Canada, and further stating nothing definitive about his eligibility (except to also suggest this is an issue for the courts to decide).
Then, to complete the cycle, Sen. Cruz completely renounces (or claims to be doing so, if he has any such citizenship attached to him) his Canadian citizenship.
A copy of his birth certificate can be found here.
The challenge over presidential eligibility (which is a question that often gets hijacked by a conversation over race, as Mr. Obama is the first presidential candidate in modern times to be faced with the question by anyone in the public sphere) is a challenge simply because American jurisprudence has no actual language that interprets the constitutional requirement to be President.
For example, the State Department has this to say regarding presidential eligibility in a citizenship document (beginning on page 7):
FAM 1131.6-2 Eligibility for Presidency
a. It has never been determined definitively by a court whether a person who
acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born
citizen within the meaning of Article II of the Constitution and, therefore,
eligible for the Presidency.
The documentation goes on to say the following:
d. This statute is no longer operative, however, and its formula is not included in
modern nationality statutes. In any event, the fact that someone is a natural
born citizen pursuant to a statute does not necessarily imply that he or she is
such a citizen for Constitutional purposes.
In other words, not only is the above stating that presidential eligibility has never actually been defined, but we don’t even know to what degree such a definition would require with respect to evidence!
Those who believe that Sen. Cruz is eligible for the presidency point to the concept that if his mother is an American citizen, then that makes him enough of a particular type of citizen to make him eligible for the presidency.
Others say they don’t know (also my official position), because nobody has ever tried such a case in the judiciary. And since this blog has been around since late 2008 tracking the eligibility issue throughout State and federal courts, I can definitely say that no such case has, in fact, been heard.
Why is this? For a number of reasons, but primarily due to some legitimately technical legal hurdles:
- Subject matter jurisdiction: Most courts believe this is a political matter, and so will be vary wary to declare themselves to be officially responsible for deciding the matter;
- Lack of standing: Most Plaintiffs who bring the issue up do not possess the right to bring the question before the court, even if that court had jurisdiction to decide;
- Insufficient remedy: Most courts do not see a sufficient enough remedy to the situation to be able to bring a case forward;
- Ripeness: Most courts believe that the Electoral College and/or the electorate in general, during time windows already specified in the Constitution, should be when the issue is decided.
The above are some of the main reasons why this issue hasn’t been decided in the judicial branch.
Therefore, the bottom line to the issue is that — outside of opinions in the court of public opinion — there is presently no actual definition that is officially agreed upon on which to substantially determine the eligibility of a presidential candidate whose citizenship credentials raise sufficient doubt.
This remains true for Mr. Obama, Sen. Cruz, and perhaps others who have presidential aspirations.