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There's a bit of an argument among academics about whether Canadian-born Ted Cruz is a "natural born citizen" eligible for the presidency. But it's likely to remain academic until an election is held, with Cruz on the ballot.
Unless, that is, some renegade state official or state court decides he doesn't belong on the ballot in the first place. Then the game could change.
Here's why.
The most common route for aggrieved partisans, in this case opponents of Cruz, are the federal courts. But the courts are unlikely to go near the question just because someone brings a lawsuit. If some gadfly, for example, were to sue in federal court to keep Cruz off the ballot, the chances of any judge stepping in to settle the question is close to zero.
There's little dispute about that according to, among many others, Ohio State law professor Daniel P. Tokaji, writing in the Michigan Law Review.
For one thing, such suits have been attempted -- aimed at both Sen. John McCain, Ariz., the Republican candidate in 2008 who was born in the Panama Canal Zone, and, of course, against President Obama. All have failed not because they were ridiculous on the merits, but because no federal judge wanted to touch them.
There are at least half-a-dozen reasons why. All stem from Article III of the Constitution, which restricts the jurisdiction of the federal courts, and from general constitutional principles of separation of powers which dictate that some decisions belong to elected officials and others to judges.
First and foremost among them is that, before the election is actually held, those most likely to sue -- a supporter of another candidate, for example -- would not be able to show any specific harm he or she faces from Cruz being on the ballot, and thus would lack standing.
While Supreme Court questions in oral argument are often abstract and hypothetical-- "what if," "suppose," "imagine" -- the cases must be concrete. Someone must suffer, or be at risk of suffering, a loss or injury separate and apart from the general public.
And it's impossible for ordinary voters or any non-candidate to argue successfully that Cruz's presence on the ballot prevented them from voting for someone else. So what's the harm?
Were a competing candidate, who could conceivably show that Cruz could illegitimately deprive her of votes, willing to take the huge political risk of filing suit to eliminate the competition, chances are a federal judge would say the decision on a candidate's eligibility is a "political question" not for the courts, but for the elected branches of government.
Indeed, that's just what Judge William Alsup of the U.S. District Court for Northern California said in one of the 2008 cases challenging McCain, brought not by a candidate but by a would-be presidential elector (as in the electoral college) from the American Independent Party.
"Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress," Alsup ruled. "The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates."
But state courts, which are not bound by the Article III restrictions on U.S. court jurisdiction and have their own standards, might be more inclined to take up a challenge, according to Tokaji's law review article.
Far-fetched as that seems, supporters of John Kerry's 2004 presidential brought a state court challenge to Ralph Nader's candidacy based on a state law that, according to Tokaji, "prohibited candidates from running in a general election after running in state primaries."
The challengers lost, but the Pennsylvania Supreme Court at the same time said "there was no doubt as to the state court's ability to entertain a challenge to a presidential candidate's qualifications in the course of determining whether to deny that candidate access to the state ballot," according to Tokaji, even though those qualifications are set by the Constitution.
If a state court, or a renegade secretary of state somewhere, were to actually wipe Cruz's name from the ballot, the issue might then truly be aired if not answered.
That, indeed, would be the most likely way to involve the federal courts, said Stephen I. Vladeck, an expert in federal court jurisdiction at American University's Washington School of Law. Suddenly, someone would have standing in the U.S. Courts - namely, Ted Cruz.
"I don't think there's any question that, if a particular state were to deny Senator Cruz access to their (primary or general election) ballot based upon concerns over eligibility, then he could sue that state for a declaratory judgment in federal court - especially since, at that moment, it would be impossible to simply wait for the Electoral College and/or Congress to reach its own judgment," Vladeck said in an email to The Washington Post.
"I think it's much more of a longshot that anyone else would have standing to challenge his eligibility in federal court until and unless (1) he wins in November; (2) the Electoral College certifies the result; and (3) Congress accepts the Electoral College's findings," he said.
"And at that point, plenty of individuals might have standing to challenge his eligibility," he said, "but I have to think courts would hold the matter to be a non-justiciable political question, textually committed by the Constitution to resolution by the Electoral College and Congress. In other words, once the Senate accepts Cruz's eligibility, I'm not sure any court would think it within their judicial power to second-guess that decision," he said.
"So to make a long story short," said Vladeck, "it seems unlikely to me that anyone other than Senator Cruz would have standing to challenge his eligibility to be President in federal court until his presidency is in the offing - and, at that point, the Constitution leaves the matter to the Senate, and not the federal courts."
Tokaji, in his law review article, sees the answer somewhat differently. There is "legal uncertainty regarding Congress's authority not to count the electoral votes of a candidate it believes ineligible," he writes. As a result, "state-court litigation seems like the most appealing path for the resolution of such a dispute, with the possibility of review in the U.S. Supreme Court. Neither standing," he writes, "nor the political question doctrine should serve as a barrier to such a review . . . This avenue seems less fraught with peril than congressional resolution of the matter. . . ."
Previously:
• 01/26/16: Obama, immigration and 10 words in the Constitution that mean, Mr. President, don't be a king
• 01/08/16: Carson's inspiring tale gets awkward in Iowa
