Why Ted Cruz Is Not A Natural Born Citizen Eligible To Be President And Why The Issue Is Not A Political Question

Einer Elhauge

Harvard Law School

March 16, 2016

Abstract:

This amicus brief explains why Ted Cruz fails to satisfy the “natural born citizen” requirement that the U.S. Constitution makes necessary to be eligible to be President. It also explains why the issue is not a political question.

Why Ted Cruz Is Not A Natural Born Citizen Eligible To Be President And Why The Issue Is Not A Political Question – Introduction

Statement of Interest of Amicus

The amicus is a Harvard Law professor who has researched and written on the natural born citizen clause and other issues of constitutional and statutory interpretation.1 Because of his research and expertise, he can help identify law or arguments that may not be presented by the parties or that might otherwise escape the Court’s consideration, and he can otherwise assist the Court with an objective assessment of the legal issues. He is not involved in any political campaign, and his sole interest is in the sound development of constitutional law and legal interpretation. The amicus has no financial interest in the outcome of this matter. No counsel for a party authored this brief in whole or in part, and no person or entity, other than the amicus, has made a monetary contribution to the preparation or submission of this brief.

Whether Ted Cruz Is a Natural Born Citizen Is Not a Political Question

In the court below, Judge Pellegrini correctly rejected Ted Cruz’s argument that no court can consider whether Cruz is a natural born citizen eligible to appear on the Presidential ballot because the issue is a political question. The easy way to see that the issue cannot be a political question is to ask a simple question. Suppose that a Secretary of State or an election board were to rule that Cruz was not a natural born citizen and thus declined to allow him on the Presidential ballot: would any reasonable person deny that Cruz could challenge such an adverse decision in the courts? Clearly not, which necessarily means that the issue cannot be a political question exempt from judicial review. An issue cannot be a political question for one side but not the other.

As the court held below—and as Cruz acknowledged below—an issue is a political question only when there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” Op. at 5; Cruz Brief in Opposition to Objection to Nomination Petition (in Commonwealth Court, March 7, 2016) [hereinafter “Cruz Brief”] at 3-4.

Cruz does not claim that there are no judicially manageable standards for deciding whether he is a natural born citizen. Id. at 3-14. Indeed, on the merits, he offers his own legal standards to resolve the natural born citizen issue his way. Id. at 14-26. Also demonstrating the clear existence of manageable legal standards is the fact that courts already decide the natural born citizen issue in other contexts. Op. 9-10. As Part II of this brief details, whether Cruz is a natural born citizen does not turn on any open-ended political judgments. It turns instead on technical arguments about the legal text and history, which are well within the institutional competence of the courts. Indeed, the courts have a comparative advantage over the political process in deciding such technical legal issues.

Instead, Cruz rests his entire political question argument on the claim that the issue of whether he is eligible to be on the Presidential ballot has been textually committed to a political department by the U.S. Constitution. Cruz Brief at 3-14. His argument fails for multiple reasons.

First, the issue of whether a candidate is a natural born citizen eligible to be on a Presidential ballot has not been textually committed to any political department. The U.S. Constitution says that: (1) state legislatures may determine the “Manner” of choosing Electors; (2) the Electors shall vote by ballot for President; and (3) Congress can determine when the Electors are chosen and when the Electors vote and can count the resulting votes of the Electors. See U.S. Const. art. II, § 1, cl.2-4. Immediately following those clauses, the Constitution specifically limits the power of these political departments by declaring “No Person except a natural born Citizen … shall be eligible to the Office of President.” Id. cl.5. This is not a commitment of the issue to political judgment; it is a limitation on political judgment. It means that even if state legislatures, Electors, Congress, and voters politically want to elect a President who is not a natural born citizen, the Constitution forbids them from doing so.

Why Ted Cruz Is Not A Natural Born Citizen Eligible To Be President

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