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Hey Supreme Court, Please Settle This Ted Cruz Birther Thing

The fact is, we don’t know if Cruz is eligible to be president. The Supreme Court needs to tell us. And one of his rivals needs to ask.

01.10.16 5:15 AM ET

Here are four words I never thought I would write: Donald Trump is right. As Trump said this week, it would be “very precarious” if Ted Cruz were the GOP nominee given that Cruz was undisputedly born in Canada.

Where Trump was wrong was when he made his focus on how precarious that would be “for Republicans.” Trump, possibly for the first time ever, was being too restrained. It would be precarious for our entire nation if Cruz were elected and then the U.S. Supreme Court deemed him ineligible to serve as president.  

Think about the impact it would have to our nation as we collectively waited for the Court's decision. It would be a national crisis. Our allies would not know who is actually our president, and our enemies might use the crisis to their advantage.  Plus it would cause a dramatic drop in the stock market (investors hate uncertainty.) 

Now, just so it’s crystal clear, I’m neither a Cruz birther nor am I advocating that Cruz may be ineligible to be president.  What I’m saying is that the Supreme Court has not addressed the specific of issue whether a person in Cruz’s position is eligible to be president in accordance with the requirements of the U.S. Constitution.

Specifically, Article II, Section 1 of the Constitution provides that a person cannot be president unless he or she is “a natural born Citizen.” Cruz was born in Calgary, Canada in 1970 and first moved to the United States when he was four years old. At the time of Cruz’s birth, his mother was a United States citizen but his Cuban-born father was not.

So is Cruz a "natural born citizen"?  There are countless articles debating this issue. While some legal scholars support Cruz’s eligibility, others like Fordham Law School constitutional law professor Thomas Lee informed me that the question of whether Cruz is a “natural born citizen” can be answered with two words: “It depends.”

Lee, who was an editor of the Harvard Law Review and clerked for Supreme Court Justice David Souter, explained that the issue could go either way.  Lee noted there are two views of constitutional interpretations that he believes would support Cruz—the textualist and evolutionist views. 

But under the “originalist” view, Cruz could be deemed ineligible.  Constitutional orginalists interpret the Constitution by looking at the meaning of the document when it was originally written. Ironically, Cruz is a constitutional orginalist and that is part of his appeal to conservatives. As Lee noted, Cruz should actually disqualify himself from the presidency if he remained true to being an originalist.

Once again, however, while learned people have offered well-reasoned opinions, we still don’t have the definitive guidance of the Supreme Court on this issue.  But this is no academic exercise. There were already objections filed in New Hampshire to knock Cruz off the ballot for being ineligible.

And while the New Hampshire Ballot Commission recently ruled in Cruz’s favor, its decision didn’t resolve this issue at all.  In fact, it added to the uncertainty.  The commission’s decision noted that since the question of what constitutes a “natural born citizen” has not been “answered with certainty” by the courts, the commission has “no clear standard to apply.”  It added: “this Commission is not the appropriate forum for the determination of major Constitutional questions.”

Summing up the quandary well, Brad Cook, the Republican chair of the commission, told the media at the time of rendering the decision, “It would be really nice if somebody would get this issue of law decided who has authority to decide constitutional issues, so every four years we don’t have this come up again.”  

And that’s where we are now.  Given Cruz’s ascendancy in the polls and the plausible chance he could be the GOP presidential nominee, this issue needs to be decided by the federal courts now. But this is trickier that it would seem. We the people just can’t simply ask the nine Supreme Court Justices to gives us a quick answer. 

Professor Lee noted that there are likely only a few parties who would have the legal standing to bring a lawsuit in federal court to challenge Cruz’s eligibility. “Individual voters would not have standing,” Lee noted because federal courts require a “concrete injury,” not a more “generalized grievance.”

Bottom line, Lee believes it will take one of Cruz’s fellow presidential candidates to bring a lawsuit. Lee doubted that Super PACs would have standing in federal court unless they could show a concrete injury.

If a GOP presidential candidate were to now file a lawsuit in the federal courts where Cruz is on the ballot, it could go a long way to resolving this issue.  Waiting is precarious for all of us. What if Cruz wins the GOP nomination and the Democratic nominee or a third party presidential candidate then files a lawsuit to deem Cruz ineligible? Imagine if Cruz is deemed ineligible only a few weeks before Election Day?  The Democratic nominee would likely win in a cakewalk.

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However, the worst-case scenario for us all would be that such a lawsuit isn’t filed until Cruz won the election and before he was sworn in as president. Talk about a national crisis. Does the Vice President elect get sworn in while we wait for the court?  

Lee did caution, however, that the Supreme Court could deem this issue a “political question” and decline to get involved. But President Cruz would still likely be dogged by this issue his entire term, leading to a possible crisis in confidence.

That’s why it’s in the best interest of all Americans – regardless of political party- to resolve this issue sooner rather than later. It will give us all peace of mind. Plus it deprives Trump of another non-policy issue to distract us with, which is truly great for America.