Donald Trump defended his argument that his Republican presidential rival Sen. Ted Cruz should not be the GOP nominee because he was not born inside the U.S. by arguing that Democrats would mount a legal challenge to his eligibility for office.
“I am not bringing a suit, but the Democrats are going to be filing a lawsuit,” Trump warned during Thursday’s night’s debate on Fox Business.
The Texas senator laughed off the argument, saying that there was no legal question that he was eligible. Noting that he was a constitutional lawyer who has argued cases before the Supreme Court, he said he was “not taking legal advice from Donald Trump.”
However, Trump’s claim that Democrats would mount a challenge regarding Cruz’s eligibility is plausible. At least one, Rep. Alan Grayson, D-Fla., has already said he would do exactly that. Other Democrats and liberal thought leaders appear to be warming to the idea.
“Technically, he’s not even an American… The Constitution says natural-born Americans, so now we’re counting Canadians as natural-born Americans? How does that work?” Grayson told radio host Alan Colmes in November. “I’m waiting for the moment that he gets the nomination and then I will file that beautiful lawsuit saying that he’s unqualified for the job because he’s ineligible.”
Cruz was born in Canada to a U.S. citizen mother and a Cuban father and has faced periodic questions over his eligibility for the White House because the Constitution requires a president to be a “natural born citizen.” The consensus among legal scholars, though, is that his mother’s citizenship made him a citizen from birth and therefore eligible to be president.
Trump raised the question of Cruz’s status earlier this month after polls showed that they were in in a tight race for the Iowa caucuses, a key early event in GOP nomination process. “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.
Since then many liberals have agreed the question of Cruz’s eligibility is unresolved. House Minority Leader Nancy Pelosi, D-Calif., told reporters on Jan. 7 that she was agnostic on the issue.
“I do think there is a distinction between [Sen.] John McCain being born to a family serving our country in Panama [and] someone born in another country. But, again, this is a constitutional issue that will either be decided or not. My opinion means nothing here,” she said.
Harvard law professor Laurence Tribe, who was appointed by Obama in 2010 to an advisory post in the Justice Department and was a lawyer for Al Gore during the 2000 election recount, told the Guardian on Jan. 10 that the question of whether Cruz was eligible was “murky and unsettled” though he personally thought that Cruz should be allowed to run. Trump referred to Tribe’s argument during Thursday’s debate.
The Washington Post published an op-ed Tuesday by Mary McManamon, a law professor at Widner University’s Delaware Law School, titled “Ted Cruz is not eligible to be president.” The liberal news site TPM.com did a follow-up interview with McManamon, allowing her to lay out her theory in more detail. It is essentially the same one Grayson made.
That argument comes down to a simple question: What does the Constitution mean when it says the president must be a “natural born citizen?” Legal scholars have generally held that it means citizen from birth, which would apply to Cruz. The candidate himself has endorsed this view.
McManamon argues no, it means people born on U.S. soil, which would exclude Cruz. Oddly, McManamon also notes in her Washington Post column that the first U.S. naturalization law, enacted in 1790, said that children born to Americans abroad should “be considered as” natural born but then waives this aside as irrelevant.
TPM.com editor Josh Marshall wrote Thursday that it had changed his thinking. “I have always assumed that Cruz’s mother, presumably, being an American citizen settled the matter. And I still think that should be the rule. But as we note in our feature today there does appear to be a credible, originalist argument against Cruz’s eligibility.”
Liberals have long seen questioning the eligibility of a politician to serve as president because of the circumstances of his or her birth as clear proof that a person belongs to the outer fringes of the political sphere. But their thinking is changing now that it is no longer being primarily applied to President Obama.
