Of course: Lawsuits filed in Texas, Florida over constitutional eligibility
posted at 3:21 pm on January 15, 2016 by Ed Morrissey
The showdown over eligibility may shift from the political arena to the courts – at least, it might if two plaintiffs get their way. Both Ted Cruz and Marco Rubio face legal challenges to their presidential ambitions based on the circumstances of their birth. In Florida, the challenge comes from a voter whose previous lawsuit against Barack Obama’s eligibility went nowhere, and names both Republican contenders. Rubio’s legal team didn’t exactly shrug it off, but asked the court to do so instead:
This week Rubio sought to have a court complaint in Florida against him thrown out, saying the argument “would jeopardize centuries of precedent and deem at least six former presidents ineligible for office.” (Last week he told reporters of Cruz, “I don’t think that’s an issue.”)
Rubio was born in Miami in 1971. But Rubio’s Cuban immigrant parents did not become U.S. citizens until 1975.
That’s convinced so-called birthers to conclude Rubio is ineligible under Article 2 of the Constitution, which says “no person except a natural born citizen … shall be eligible to the Office of President.” …
A Fort Lauderdale man, Michael Voeltz, filed a complaint against Rubio and Cruz in December, arguing they are “naturalized citizens, or at the very least, simply fail to comply with the common law Supreme Court established definition of natural born citizen …”
Rubio filed a motion to dismiss on Jan. 11. The 34-page filing, heretofore unknown, shows that Rubio’s legal team spent considerable time researching the issue. “Senator Rubio is a natural born citizen of the United States and he is eligible to be President of the United States,” it concludes.
Interestingly, the first argument in the motion goes to a lack of standing. That would be pretty much a standard approach to lawsuits anyway, but perhaps not the most politic of arguments. The motion argues that the question raises only a general claim of injury to the plaintiff rather than a “particularized” injury. While that’s based on plenty of precedent, it might rub some who see standing as a barrier to properly enforcing the Constitution the wrong way. That irritation might increase with the second major argument based on Berg v Obama that eligibility is “a non-justiciable political argument,” although again based on substantial precedent. Politically, Rubio is on much firmer ground with his positive argument in the latter part of the motion on what makes him an eligible candidate.
Meanwhile in Texas, Newton Schwartz has filed a new lawsuit to declare Cruz ineligible. Schwartz wants the suit to go straight to the Supreme Court:
The federal case filed in Texas argues that the question must be presented to the Supreme Court for fair adjudication instead of left up to popular consensus.
“The U.S. Constitution is not a popularity document for fair weather only,” says the lawsuit filed by Newton Schwartz says.
“However persuasive, one finds each side in this debate, the final decision ultimately rests in the hands of five or more of nine Justices on the Supreme Court as mandated by the Constitution.” …
The suit argues that the constitutional mandate that the president must be a “natural-born citizen” has never been settled in court and warned that the “mounting questionings crescendo” must be settled as soon as possible. It goes on to note the “persistent doubt” about President Obama’s eligibility.
Well, that would at least put an end to the debate, although it’s doubtful that the district court will pass the case directly to the Supreme Court. At least thus far, Cruz has not had the opportunity to file a brief in this case, but it will probably follow along the same lines as Rubio’s motion in Florida, asking to dismiss it outright. Who knows, though? Cruz did a pretty good job of arguing his case last night, and might relish representing himself at the Supreme Court in an emergency hearing — assuming that the Supreme Court would bother to hear it, which is a fairly large assumption at this point.
Don’t get your hopes up, though. The courts steered very far clear of this issue with Obama, and there’s no reason to think they want to get themselves ensnared in this debate now. If Congress wants to clarify the phrase “natural-born citizen,” they have plenty of room to do so, and the courts will probably be happy in this one instance to send the controversy to Capitol Hill.