Journalist Charles Dudley Warner’s famous quote that “politics makes strange bedfellows” found yet another new example during the past few days.
A new Harvard Law Review article authored by two former US solicitor generals, one who served Pres. George W. Bush and the other in an acting capacity for President Obama, provides surprising support to conservative Sen. Ted Cruz’s (R-TX) argument that he is eligible to seek the presidency.
The senator is in a unique situation. He must overcome an obstacle that no other candidate need be concerned with merely to obtain ballot access. Born in Canada to an American mother and a Cuban father, there is an argument that Sen. Cruz does not fulfill the constitutional requirement for individuals running for president, that of being a “natural born citizen.”
Neal Katyal, who served briefly as acting US Solicitor General after Elena Kagan resigned to become a Justice of the Supreme Court, and Paul Clement, who President George W. Bush appointed to the position, co-authored their article entitled, “On the Meaning of Natural Born Citizen” for the Harvard Law Review. Their piece directly discusses the Cruz situation and provides ample legal argument to suggest that the Senator does fulfill the basic legal requirements to become a presidential candidate.
Just because the Harvard Law Review publishes an opinion, however, doesn’t mean the judiciary will agree. Regardless of what certain legal scholars’ perspective may be, Cruz has a serious practical and logistical problem if he intends on entering the presidential campaign.
Each state controls its own ballot access, with unique qualification processes. Hence, it is conceivable that at least one of Cruz’s opponents, or an outside organization, could file a lawsuit against him in every state. This means he would have to expend time and resources to qualify for the ballot in each place … with the pressure to win every time, at every court level. Though he may be successful in obtaining ballot position, the drain of time and money would certainly be a distraction for he and his entire team.
The situation also may not be as clear-cut as these authors seem to indicate. The argument that a “natural born” citizen includes those individuals born on foreign soil to at least one parent who is a US citizen is not necessarily proven. If it were, then there would have been no controversy over President Obama’s eligibility. No one disputed that Obama’s late mother was from Kansas, so this, taking the authors’ analysis to another step, should have superseded any argument over whether or not he was born in Hawaii. But, it did not.
Katyal and Clement further use the example that Sen. John McCain (R-AZ) was born in the Panama Canal Zone, which could have disqualified him from running for president, but failed to do so. In the McCain instance, the Panama Canal Zone was then American territory, and his father was stationed there on military assignment. This is a far different situation than that of Sen. Cruz, who was born on foreign soil to a father who had never been an American citizen.
Their final core argument is that ballot access should not be denied to qualified potential candidates because of legal technicalities. While their sentiment may have validity, it is not the same as a judicial ruling. On this subject, a definitive opinion has yet to be rendered.