No, Ted, You’re Wrong About Your Eligibility

January 15, 2016 11:14 a.m.

Last night I noted that Ted Cruz’s blanket claim that there’s zero chance that his presidential eligibility is in question is simply false. He stood behind his own expertise as a lawyer who’s argued multiple cases before the Supreme Court to say that this simply is not a serious issue. Indeed, Ari Melber, the legal expert on MSNBC and an acquaintance of mine, was on the air this morning and said:

To be fair to Ted Cruz and the issue here, this is not taken that seriously in legal circles that [it] would be something that would bar him from running or being president. It’s true when Donald Trump and others have repeated that this exact question has not been resolved by the federal courts, let alone the Supreme Court. So in that sense, because it is rare and an arcane sentence, it’s accurate to say, we don’t know for certain.

I am not in a position to be too critical of this statement because this is what I myself thought as recently as a week ago, and I said as much. But it’s actually not accurate. The fact that Cruz was so definitive, so absolute, should and will force an on-going conversation, interwoven into the presidential campaign, which will show it’s not true.

Let’s go through this: Here’s the originalist argument that questions about his eligibility hang on.

Now, let’s be clear about one thing. I am not a Ted Cruz fan. And, for what it’s worth and I don’t think it’s worth much, I actually think he is or at least should be eligible. But I would not expect anyone to take me as a fact witness in this matter or an expert on the law. I’m not a constitutional expert (though I am an expert on the historical period) and I’m biased. My point is we have to look at what a range of genuine constitutional experts are saying. And they don’t agree with Cruz that is an open and shut case. Not at all.

Laurence Tribe thinks it’s a very real issue. Now, Tribe’s a liberal in both the political and legal sense. So while he is one of two outside experts McCain’s campaign consulted in 2007-08 when analyzing McCain’s eligibility, at least as a political matter people can dismiss him as an ideological or political partisan.

How about Trevor Potter, a longtime Republican lawyer and former GOP-appointed Chairman of the Federal Election Commission. He did the analysis for John McCain in 2007-08. He thinks it’s a real issue, too. McCain was born abroad but to two U.S. parents – critically – on what was then US soil, in the Panama Canal Zone. He says that Cruz’s position is clearly less certain than McCain’s. If they had been analyzing a candidate with Cruz’s facts, he said, “our comfort level that the candidate met the constitutional requirement would have declined.”

Here’s Yale Law Professor Jack Balkin’s discussion. I don’t think he thinks he’s ineligible. But he makes clear that there are a series of very real questions raised by Cruz’s set of facts.

Cass Sunstein, an extremely prominent law professor, comes down on Cruz’s side but he makes clear that it’s not an open and shut case or one that is obvious on its face. And notably he cites Michael Ramsey, a former Scalia clerk, who is behind the main recent opinion (not a judicial opinion but a published argument) for Cruz’s eligibility. Even he says, “it’s a mystery to me why any one thinks it’s an easy question.”

It is important to note that I think most of the experts cited would eventually come down on the side of eligibility. It’s somewhat hard to say because many are just going with, ‘it’s not clear cut’ or a tentative read that he’s eligible. That’s what I think. To me we should read the provision as limiting the presidency to people who are citizens at birth rather than people who are naturalized at a latter point. (Indeed, I think the entire provision should be removed in favor of eligibility limited to people who have been citizens for perhaps 30 or 40 years.) But again, this isn’t the standard Cruz is pressing. He’s saying it’s not even a serious question. And again, I think that is demonstrably not true.

Balkin’s run-down of the issue is a good place to start. The broad issue is that there’s a strong argument that according to the law and common understanding of the phrase at the time Cruz is not eligible. The significant question is to what degree evolving understandings of citizenship and subsequent laws shift the balance in favor of his eligibility. I have no real ability to argue those points other than to argue a personal opinion. But at this stage, that’s not really the question. The issue is whether there is a substantial and serious question about Cruz’s eligibility. Based on the above, I think the answer is clearly yes, for better or worse. But Cruz, of course, has a strong interest in saying it is a non-issue, not something voters need to factor into any calculus of uncertainty hovering over his candidacy. He appears to be wrong.

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