The Irony of Birtherism

January 14, 2016 1:41 p.m.

I confess I was caught totally off guard by how many serious legal scholars, most of a not terribly partisan hue, think there is a serious question about whether Ted Cruz is eligible to serve as President. 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. And here we have Laurence Tribe, Jack Balkin and now longtime McCain advisor (and onetime FEC Chair) Trevor Potter – all saying with different levels of emphasis and slightly different shades of opinion that this is a real issue.

Even Cass Sunstein, who comes down on Cruz’s side, does not dismiss it as a silly point that can simply be dismissed.

Now, hovering in the background for everyone in this drama is the figure of Barack Obama, who has had various ‘birther’ conspiracy theories hover around him since he became President. Is everyone now made a hypocrite by this? Ironically, not at all. There’s never been even the slightest question that Barack Obama is a natural born citizen. Born of an American mother on American soil. Done and done. Not the slightest question or doubt. The only issue arises if you raise all sorts of nonsensical hypotheticals about – well, maybe his mother secretly gave birth to him in Kenya! Alternatively, various racist and/or nativist ‘thinkers’ have tried to reframe the question around male bloodlines. What it all comes down to though is that the man who has been most dogged by ‘birtherism’ has the cleanest cut of cases and various Republicans actually don’t.

Ironically, Ted Cruz most of all.

As I’ve noted, not only does there appear to be a real question. But Cruz has an additional hurdle: an almost crippling dearth of goodwill. Trevor Potter, who I mentioned above, worked as part of a team of McCain lawyers doing their own analysis on McCain back in 2007/8.

So McCain got asked about this a couple days ago on CNN and when pressed on whether he would introduce a Senate resolution affirming Cruz’s eligibility as his colleagues had done for him in 2008, he said …

McCain: I think it’s not a bad idea.

Anchor: Would you do it?

McCain: Oh, sure. I assume that he is qualified. But we do have to look at it. It’s somewhat different than my case, which was, I was born in a territory, obviously the canal zone. He’s born in another country. So there’s some question and all I said was, I think we should look at it. All of a sudden kaboom.

In other words, sure I’ll introduce a resolution affirming that he’s a natural born citizen … as soon as we find out if he’s a natural born citizen.

No one who knows Ted Cruz seems to like Ted Cruz, except for a very, very small number of people in whatever social milieu he’s in. But that’s not enough to dog him on this. A colorable question over his eligibility is. The fact that there really appears to be a legal/constitutional question gives everyone who would like to crap on him a standing invitation to do so.

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