Is Donald Trump's "free legal advice" for Ted Cruz any good?
For years now, Sen. Ted Cruz of Texas has had to fend off questions about whether he's eligible to serve as president even though he was born in Canada.
Earlier this week, his 2016 GOP primary opponent Donald Trump gave Cruz some "free legal advice" -- to seek a declaratory judgment to resolve the issue.
"You go in seeking the decision of the court without a court case. You go right in. you go before a judge. You do it quickly," Trump said on CNN. "I've used it on numerous occasions."
While Trump has a way of making problems seem easily overcome -- see his proposal to build a wall with a "big, beautiful door" to solve the nation's immigration issues -- his legal advice for Cruz is off the mark.
For one thing, Cruz's problem here is more political than legal, constitutional scholars say.
- Rand Paul: Is Ted Cruz eligible to run for president?
- John McCain: Ted Cruz's citizenship is "worth looking into"
The issue arises from the fact that Cruz was born in Calgary, Canada in 1970 to a Cuban father and American mother. The Constitution says that only "natural-born citizens" can be president, but it does not clearly define the term. In 2013, Cruz released his birth certificate and said in a statement, "Because my mother was a U.S. citizen, born in Delaware, I was a U.S. citizen by birth."
In an article in the Harvard Law Review last year, attorneys Neal Katyal and Paul Clement, who both served as U.S. solicitor general, wrote that "there is no question that Senator Cruz has been a citizen from birth and is thus a 'natural born Citizen' within the meaning of the Constitution... The less time spent dealing with specious objections to candidate eligibility, the better."
Still, the question hounds Cruz, as it has followed other candidates in the past. In 2008, the Senate unanimously passed a resolution declaring that GOP candidate John McCain was a natural-born citizen, even though he was born on an American military base in the Panama Canal Zone in 1936.
So it's possible Cruz may want to take further action to put the issue to rest. However, Peter Spiro, a law professor at Temple University who specializes in constitutional and immigration law, told CBS that it isn't even possible for Cruz to follow Trump's "free legal advice" at this point.
"Cruz couldn't seek a declaratory judgment -- you need adverse parties to do that," Spiro wrote in an email. "In other words, Cruz would need someone to sue in order to seek such a ruling. If a state refused to put him on the ballot because of his Canadian birth, then he could seek a declaratory judgment, but until that happens, he has no basis for going to court."
It's possible, Spiro pointed out, that Trump himself could sue a state elections commissioner for putting Cruz on the ballot and seek a declaratory judgment. Still, Spiro said the issue amounts to "a classic political question."
"A court wouldn't touch the question with a ten-foot pole," he said. "There's a clear consensus that Cruz is eligible, there's no reason for the courts to get involved. They won't."
Not everyone is convinced, however. According to U.S. News and World Report, Rep. Alan Grayson of Florida, a Democratic Senate candidate eyeing Sen. Marco Rubio's seat, plans to file a lawsuit if Cruz wins the nomination.
"If he's not qualified to be president according to our Constitution, then he certainly should not serve," Grayson told the magazine. Referring to his notes on Cruz's eligibility, Grayson said, "There's quite a lot of stuff here."
Meanwhile, Cruz told reporters Thursday he won't be following Trump's advice. "No, it's not anything that's going to happen, and I'm not going to be taking legal advice any time soon from Donald Trump."
