Citizen Cruz

Republican Presidential candidate Texas Senator Ted Cruz looks on during the Republican Presidential debate sponsored by Fox
Republican Presidential candidate Texas Senator Ted Cruz looks on during the Republican Presidential debate sponsored by Fox Business and the Republican National Committee at the North Charleston Coliseum and Performing Arts Center in Charleston, South Carolina on January 14, 2016. AFP PHOTO/ TIMOTHY A. CLARY / AFP / TIMOTHY A. CLARY (Photo credit should read TIMOTHY A. CLARY/AFP/Getty Images)

"No Person except a natural born Citizen . . . shall be eligible to the Office of President."

These fifteen words of the Constitution, nestled into Article II, Section 1, Clause 5, have caused more hyperbole and irritation in recent presidential politics than anyone ever imagined. Ted Cruz is dogged by allegations that geographic circumstances of his birth disqualifies him from the presidency. What if the meaning of those words go to the U.S. Supreme Court this year?

Barack Obama and John McCain in 2008 both confronted this problem. The Eligibility Clause was crafted to avoid the placement of foreign princes in the executive mansion. It has evolved to evoke a sense of blood nationality -- that one born to a place is by affinity and nativity. In the case of Barack Obama, the argument was not over the circumstances of his birth (in Hawaii to a citizen mother) but a conspiracy theory that evidence of this birth was false -- the infamous 'long form birth certificate' brouhaha. For McCain, it was his birth to citizen parents on a US military base in Panama. (How people assess the Obama case is largely a reflection of their politics)

It has been argued that the Cruz case is a different, and more serious case that merits a formal examination. His birth to a U.S. citizen mother in a foreign nation, and his long-time holding of dual citizenship raise the issue. Obama birther Donald Trump has turned his birth citizenship guns on Cruz. A recent YouGov survey indicates that most respondents would vote for a qualified non-native candidate for president. The same survey found that most respondents thought Trump's attack was not sincere.

Conservative law professor Mary Brigid McManamon contends that Trump's contention that Cruz is not a natural born citizen is on mark. Because Mr. Cruz was not born from his mother onto U.S. -- let alone Texas -- soil, he is not a natural citizen, but is a citizen due to naturalization action by Congress. Harvard's liberal legal thinker Lawrence Tribe took the coy position that the question is not 'settled,' leaving Cruz's status hanging out there for a court to decide.

Houston Lawyer Newton Schwartz filed suit contending that Cruz is ineligible to be president. The case could be dismissed for lack of standing -- what harm befalls Schwartz? But presumably a county election official somewhere could question placing an ineligible candidate on the ballot.

A PPP poll indicated that most Iowa voters have no idea Cruz was born in Canada, though among the 47 percent Iowans who think the president must be native born, Trump wins among them 3:1. But let's lay aside Iowa, and think about this suit going forward. Consider what happens if a suit goes forward. The U.S. Supreme Court enjoys quirky political cases. They enjoy redistricting cases, and voter identification cases, because they have politics and unsettled questions of law. Here is the first truly fundamental political question to arrive before the High Court in some time. And, it is one that could determine the presidency for the first time since Bush v. Gore.

The scope of conflicts that arise in having such a case move forward are compelling, the stuff of which legal dramas are made. Cruz clerked for Chief Justice William Rehnquist in 1996, as did the current Chief, John Roberts. He worked around five of the current justices. He recruited Roberts to the Bush recount team in 2000. And, he has argued before the High Court nine times. Cruz and the court know each other.

How does the Court rule on such a case? A strict constructionist argument would disqualify Cruz from the ballot. You can almost hear the words ringing forth from Justice Scalia that the nature of nature is in nature, and Congress cannot determine nature any more than it can stop the sun from rising. The liberal wing would certainly need to argue for the evolving and living constitution. The arguments for Cruz's eligibility could be built on the needs of citizenship to represent a modern world. But, this implicitly reflects poorly on the notion of defending birth citizenship for the children of those undocumented persons who make it to the United States.

The political solution is the most peculiar. If we ascribe the motives of High School Musical characters to the Supreme Court justices, then certainly the Gang of Four on the left would enjoy aligning with a couple of strict constructionists to knock off a Republican on birthright grounds. Do the Republicans pull off Bush v. Gore II and go against constitutional literalism to save Cruz's bacon and expand the notion of natural birth citizenship?

At the very least, such an issue is better engaged early in the nominating process rather than later. A determination late in the election (or afterwards) regarding Cruz's (in)eligibility would introduce an inflammatory variant on the immigration issue into the heart of the campaign and place the Court in the position of potentially picking winners and possibly defying the popular will. The Bush v. Gore case damaged the credibility of the court and knocked down trust in the institution. Determining Cruz's eligibility early on, no matter how ridiculous or politically-motivated is the argument, saves us from another divisive campaign that eats at the trust and credibility of our institutions.

Finally, we should consider the judgment of the American people. When Arnold Schwarzenegger was popular as governor of California, Orrin Hatch introduced a constitutional amendment (the Equal Right to Govern Act) to allow naturalized citizens to serve as president. Only one in three Americans backed the change when polled in 2004.