- Trump has said in interviews that Cruz citizenship is a hurdle
- Question is being raised ahead of Iowa caucuses on Feb. 1
Ted Cruz’s birth on Canadian soil 45 years ago is getting a lot of air time thanks to Republican rival Donald Trump, but, according to constitutional experts, the Texas senator has little to fear if the question of citizenship ends up in court.
Democratic Representative Alan Grayson of Florida said he may sue to derail Cruz’s presidential bid, citing the Constitution’s requirement that the chief executive be a “natural born citizen,” a term that has never been fully defined by the courts.
“Why does someone born in Canada think that he may qualify as a ’natural born citizen’ of the United States?” Grayson, who is running for the U.S. Senate in Florida, said Thursday in an e-mail. “The burden of proof is on the candidate.”
Cruz was born in 1970 in Calgary to an American mother and a Cuban father who moved north to work in the oil industry. The family moved back to the U.S. about four years after Cruz was born.
Grayson questioned whether Cruz’s American mother lost her U.S. citizenship by applying for and receiving Canadian citizenship when her husband did. Grayson also suggested Cruz’s mother may have been out of the U.S. for too long for her son to qualify for citizenship under U.S. law at the time. Those questions won’t get far with judges being asked to examine them, many constitutional experts say.
"Anybody with a filing fee can bring a lawsuit, but it would get thrown out pretty quickly," said David Martin, an immigration and constitutional law professor at the University of Virginia in Charlottesville. "In a way, that may be better for Trump -- there would be no definitive court ruling and he could continue to raise doubts."
Martin, and others, add that under U.S. law, children born to at least one American parent abroad are automatically U.S. citizens.
“The legal question is straightforward and clear,” Cruz, who served as Texas Solicitor General from 2003 to 2008, said on Bloomberg’s “With All Due Respect.”
The problem for would-be plaintiffs in a legal battle with Cruz is that no one can show they’ve been harmed by the candidate’s potential lack of eligibility.
Right to Sue
"You don’t have a right to sue just because you think the law is being broken -- you have to have a personalized injury," said William Baude, an assistant professor at the University of Chicago Law School. "A lawsuit by a member of the public or a member of Congress would almost certainly be dismissed for lack of standing."
That would change if Cruz were elected president, started signing bills and made decisions that would affect people, Baude said. Then, the courts might take up the issue.
Trump, who has been commenting extensively on the issue without giving an opinion one way or the other, hasn’t threatened to sue. But even without a lawsuit, Trump may benefit from questions being raised about his closest rival in Iowa, where caucuses are set to be held Feb. 1.
Trump raised "birther" questions about President Barack Obama, questioning whether the president was born in Hawaii even after a birth certificate was produced, spawning conspiracy theories. Now, White House press secretary Josh Earnest says he’s enjoying the close scrutiny Cruz is getting.
“It would be quite ironic if after seven or eight years of drama around the president’s birth certificate, if Republican primary voters were to choose Senator Cruz as their nominee — somebody who actually wasn’t born in the United States and only 18 months ago renounced his Canadian citizenship,” he said.
Trump on Thursday suggested Cruz sue first, seeking a court ruling that he’s eligible to be president even though he was born north of the border.
"Ted -- free legal advice on how to pre-empt the Dems on citizen issue. Go to court now & seek declaratory judgment -- you will win!" Trump said in a tweet directed at the junior senator from Texas.
Legal experts who aren’t involved in the election point out that a lawsuit by Cruz would likely be dismissed just as quickly as any lawsuit against him, and for the same reasons; the Texan hasn’t been legally harmed by questions about his eligibility. The polls, so far, support that.
Cruz leads Trump by four percentage points in Iowa in the Real Clear Politics average of recent polls, although there haven’t been any major polls reported since Trump brought up the issue.
"Cruz has been allowed to campaign and participate in Republican debates," said Michael Jarecki, a Chicago immigration lawyer who says Cruz’s birth in Canada doesn’t disqualify him from running. "Unless a state refuses to place him on the ballot due to the citizenship question," Cruz has no one to sue.
“If some state or election board says they will bar him from a ballot, or if the GOP says that he can’t caucus, then he can file a suit against that party and there will be a ‘case or controversy,”’ and Cruz will have standing, Jarecki said.
Questions over the eligibility of presidential hopefuls George Romney and John McCain, born in Mexico and the Panama Canal Zone, respectively, fizzled and never led to court rulings.
McCain said during a Phoenix radio interview that Cruz’s birth abroad and his eligibility to become president is “worth looking into.” He said his own birth on a U.S. military base is “different from being born on foreign soil.”
Cruz said McCain was questioning his eligibility because the Arizona senator secretly backs Marco Rubio for the Republican nomination.
While Trump has repeatedly discussed Cruz’s citizenship "hurdle," the official stance of his campaign is that the billionaire only brought up the issue in response to a question he was asked.
"Mr. Trump is not raising the question, he was asked and answered," his spokeswoman Hope Hicks said in an e-mail.