Ted Cruz, Laurence Tribe, and Tammy Duckworth

In 2016, Professor Laurence Tribe said it was "not settled" whether Ted Cruz was a "Natural Born Citizen."

|The Volokh Conspiracy |

The Natural Born Citizen Clause is back in the news. Indeed, every four years, this obscure provision of the Constitution rears its head. Let's flash back to January 11, 2016. Harvard Law School Professor Laurence Tribe wrote an op-ed in the Boston Globe, titled, Under Ted Cruz's own logic, he's ineligible for the White House.

But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an "originalist," one who claims to be bound by the narrowly historical meaning of the Constitution's terms at the time of their adoption. To his kind of judge, Cruz ironically wouldn't be eligible, because the legal principles that prevailed in the 1780s and '90s required that someone actually be born on US soil to be a "natural born" citizen. Even having two US parents wouldn't suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.

Three days later during the presidential debate in Charleston, then-candidate Donald Trump cited Tribe's op-ed. Here is an excerpt from the transcript:

TRUMP: Lawrence Tribe and (inaudible) from Harvard—of Harvard, said that there is a serious question as to whether or not Ted can do this. OK? There are other attorneys that feel, and very, very fine constitutional attorneys, that feel that because he was not born on the land, he cannot run for office. ….

CRUZ: Well, listen, I've spent my entire life defending the Constitution before the U.S. Supreme Court. And I'll tell you, I'm not going to be taking legal advice from Donald Trump.

TRUMP: You don't have to. Take it from Lawrence Tribe.

Tribe would subsequently move beyond his attempt to hoist Cruz on his own petard, and insisted that the issue was "not settled." The following month, Tribe debated Jack Balkin on this question. My colleague Randy Barnett offered this recap:

Although I have been persuaded by the Ramsey analysis — which rests, in part, on the relationship between the Natural Born Citizenship Clause and the power of Congress under the Naturalization Clause — as well as by my own analysis of the parallels between between a "natural born subject" in a monarchy and a "natural born citizen" in a republic, I agree with Larry that this issue is "not settled." This is so, first, because the issue has not been squarely presented in exactly this context so has not been settled as a legal question by practice, and secondly that it has not been authoritatively ruled upon by the Supreme Court. I would note, however, that at least some of the originalist arguments for why Ted is not a natural born citizen would also have undermined the eligibility of previous presidential candidates who were accepted as eligible, so practice does undermine these originalist theories.

Later that year, Tribe wrote an article in the Harvard Civil Rights-Civil Liberties Law Review about this issue:

First, and most concretely, the debate over the "Natural Born Citizen" clause will likely be resuscitated along with Cruz's presidential ambitions, possibly as soon as the next presidential election cycle. But even if Cruz himself does not run for President again in 2020, his 2016 campaign is unlikely to be the last time we will need to grapple with the meaning of natural born citizenship, just as it was not the first.

He was right.

Fast forward to 2020. The Biden Campaign was vetting Senator Tammy Duckworth for the VP slot. However, counsel had some concerns that challenges would be raised against her eligibility. The New York Times reports:

Ms. Duckworth was regarded by Biden advisers as among the candidates likeliest to help him achieve a smashing electoral victory in November. But legal advisers to the campaign expressed urgent concern that Ms. Duckworth could face challenges to her nomination in court: She was born overseas, to an American father and a Thai mother. While Mr. Biden's team believed Ms. Duckworth was eligible for national office, campaign lawyers feared that it would take just one partisan judge in one swing state to throw the whole Democratic ticket off the ballot.

"One partisan judge." How quickly we forget. Laurence Tribe said the issue was "not settled."

In other news, Laurence Tribe commented on John Eastman's op-ed in the New York Times regarding Kamala Harris's eligibility for VP:

In an interview on Thursday, Laurence H. Tribe, a professor of constitutional law at Harvard Law School, compared Mr. Eastman's idea to the "flat earth theory" and called it "total B.S."

"I hadn't wanted to comment on this because it's such an idiotic theory," Mr. Tribe said, "There is nothing to it."

Mr. Tribe pointed out that the theory still quickly landed in the hands of a president who has used his pulpit to spread a number of conspiracies against his political enemies, particularly those who do not have white or European backgrounds.

During the 2016 presidential race, Mr. Trump continuously questioned the citizenship of Senator Ted Cruz of Texas, suggesting that his Canadian roots would be a problem should he win the presidency. Mr. Cruz, who was born in Canada to an American mother and a Cuban father, is a United States citizen. Mr. Eastman, for his part, wrote that year that Mr. Cruz was eligible.

The Times did not note that President Trump cited Tribe during the 2016 debate regarding Cruz's eligibility. How quickly we forget.

Advertisement

NEXT: Thursday Open Thread

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. They didn’t forget. They are fake news.

  2. So there are idiots on both sides of the ideological divide. That doesn’t change the fact that it would be unlikely to be a liberal judge that declared Tammy Duckworth ineligible…

    1. Surely you are not suggesting that a liberal judge would willfully ignore the original meaning of the Constitution in order to protect a liberal Democratic ticket on its way to – ahem – a “smashing electoral victory?”

      OTOH, there is a world of difference between calling someone a “liberal” or “conservative” judge, which implies an ideological leaning, as opposed to the inflammatory term “partisan” judge, which implies an illicit motivation. I seem to recall that when a certain man named Trump implied that “Obama judges” act out of partisan motivation, the entire world erupted with outrage. Should at least some of that outrage apply here as well?

      That said, this talk of Duckworth’s citizenship and “one partisan judge” strikes me more as an attempt to console Duckworth’s disappointment than the real explanation.

      1. Indeed. The difference between a conservative judge and a partisan conservative judge would be that only the latter would grasp at an implausible legal argument to declare the other side’s VP candidate ineligible. The use of that word reflects a judgement about how plausible this whole 2020-birther argument isn’t.

  3. How quickly you forget.

    The only reason the issue was brought up as to Cruz and McCain is being Trump was getting so much traction with his birther lie about Obama. Otherwise nobody would care.

    1. lol yeah its all Trumps fault good lord you ppl I swear

      1. The argument never got much traction. And the issue was based on undisputed facts as to his birth, not conspiracy theories and a refusal to believe that a black President could be legitimate. A large percentage of Republicans still think Obama was not born in the U.S.

        1. It got plenty of traction. Witness this page, Laurence Tribe’s backtracking, New York Times memory hole, and all the other cases brought up by both sides.

          1. Yeah. Honestly, the public LOVES this issue, because it’s an issue of constitutional law where everyone can debate about it and there’s never any conclusive answer that comes out of the Court. So it recurs over and over again as a sort of debating society hypothetical.

    2. And when people raised the same issue about George Romney in 1968, I guess that was Trump’s fault too.

  4. “CRUZ: Well, listen, I’ve spent my entire life defending the Constitution before the U.S. Supreme Court.”

    So that’s why Ted Cruz didn’t defend his wife when Trump called her a pig, hideously ugly, and crazy — he didn’t have the time!

    (Until now, I figured Ted Cruz’ libertarianism must have been the answer somehow.)

    1. Or he thought responding to low-brow name-calling was beneath the dignity of the office. He failed to realize that in the current environment, presidential dignity is low on the totem pole of priorities for the majority of people.

      1. Oh, he responded.

        Trump called Cruz “Rafael” and “Lyin’ Ted.”

        Cruz responded by called Trump unstable, unqualified, immoral, and tied to the mafia.

        Trump threatened to “spill the beans” on Cruz’ wife.

        Cruz responded by warning Trump to leave Mrs. Cruz alone.

        Trump called Cruz’ wife a hideous pig, with photographic ‘evidence,’ and indicated she was crazy. He also suggested Cruz’ father had killed John F. Kennedy.

        Cruz responded by claiming Trump had gone too far in attacking Cruz’ family that way.

        Trump suggested Cruz had mental problems, too.

        Cruz responded: “”I am not in the habit of supporting people who attack my wife and attack my father. . . if you go and slander and attack Heidi, that I’m going to nonetheless come like a servile puppy dog and say, ‘thank you very much for maligning my wife and my father.’

        Trump said he wouldn’t accept Cruz’ endorsement.

        Cruz responded by endorsing Trump, then inviting Trump to campaign for Cruz in Texas.

        Trump campaigned for Cruz, calling him “Beautiful Ted.”

        Tucked in there somewhere was this gem from Trump, about Cruz:
        “This guy Cruz lies more than any human being I’ve ever dealt with. He holds up the Bible and he lies.”

        1. So what are the chances that the Trump campaign goes to Brownsville Texas to get a ruling on Harris’s eligibility from the esteemed Judge O’Connor and asking him for a nationwide injunction on Kamala Harris being listed on any ballot?

          1. That wasn’t supposed to be a reply, but nonetheless the question stands.

          2. What are you referring to about Brownsville and Judge O’Connor?
            Just curious because I live near Brownsville and am not aware of any Judge O’Connor.

            1. Whoops I’m confusing forum shopping for Judge Andrew Hanen of SDTx whose court in Brownsville with forum shopping for Judge Reed O’Connor of NDTx whose court is in Fort Worth.

              1. Thanks, make more sense.

  5. What in the world is this about?

    The (non)-issue with Cruz was that he was born in Canada. That’s far from the – yes, idiotic – argument Eastman tries to make against Harris, and which Trump has inevitably picked up.

    Besides, why is Blackman suddenly picking on Tribe and seemingly generalizing with his “How quickly we forget.”

    This is a BS post.

    1. “One partisan judge.” How quickly we forget. Laurence Tribe said the issue was “not settled.”

      “Not settled” does not equate to there not being a clear answer. It only means no court has squarely ruled on the issue. As I understand Tribe, he believes the answer is clear (Duckworth and Cruz are eligible) unless you adopt Cruz’s view of originalism to reach what Tribe thinks is an absurd result. Thus, a partisan judge has a vehicle for reaching an absurd result against Duckworth that he wouldn’t have reached against Cruz.

      The Times did not note that President Trump cited Tribe during the 2016 debate. How quickly we forget.

      Since they mentioned Eastman’s take on Cruz, they should have mentioned Tribe’s as well. However, the bigger mistake the Times made was not distinguishing between the case against Harris (born in the USA) and the case against Cruz (not born in the USA). Eastman’s claim that Cruz is eligible and Harris is not is a “flat earth theory.” Tribe’s claim that Harris and Cruz are both eligible, but the later is not settled is reasonable.

  6. What is the inconsistency in Tribe’s position? First, he says that according to theories Ted Cruz, but not Larry Tribe, claims to endorse, there is a serious question whether Cruz is eligible for the Presidency. Second, Tribe says that the question, however he himself would answer it, is “unsettled,” which, as Randy Barnett agrees, it is in the only way the assertion can be meaningful. Third, somebody else expressed concerns that Tammy Duckworth might be ineligible for the same reasons that applied to Ted Cruz, or at least that some judge out there might think so. So what did people “forget”?

    1. Even if Tribe were making the argument that Cruz ought to be ineligible (which I agree he’s not), Blackman is giving the false implication that it’s somehow hypocritical to think that Harris would be eligible. But this ignores the fact that the arguments against their eligibility are completely different and, in fact, Tribe makes the argument in the 2016 piece that the question centers on whether or not the candidate was born in the US: “legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a ‘natural born’ citizen.”

  7. Josh, you are going way beyond reasonability with your interpretation of “one partisan judge.”

    Have you ever practiced?

    Sometimes your client is going to do something dumb. It can be hard to say that directly (or you already tried and it didn’t work), so what you do is conjure some other biased authority figure who will oppose the client’s action.

    “It sure would be nice if you could just dump the waste right into the river, but you know, just one of those environmental wackos gets wind of it and calls the EPA, and we’re looking at an investigation. Not saying we wouldn’t win, but it’s a risk.”

    “The subcontractor definitely screwed the school construction job up, but keep in mind the judges here are elected, the sub is a local family business, and the local media coverage has been blaming us for the delays. There’s going to be a temptation to see us as the deep pocket from out-of-state.”

    That is how you should interpret “campaign lawyers feared.”

    “Yeah, no question, it’s a travesty anybody is questioning Tammy’s status as an American, but remember Republican operatives can sue us anywhere and it just takes some wingnut judge to rule against us.”

  8. Shouldn’t the link to the NYT report regarding the Duckworth vetting be https://www.nytimes.com/2020/08/13/us/politics/biden-harris.html ?

  9. Tribe is an unhinged partisan, but to be fair, the Cruz/Duckworth cases are just not the same thing as the Harris case.

    Blackman is right to point out the hypocrisy (“one partisan judge”) in Cruz vs Duckworth cases.

  10. You should probably note that the very same logic by which Eastman argues against Harris’s eligibility would lead to accepting both Duckworth and Cruz as eligible, at least as i understand it. (Eastman privileges citizenship of the parents over soil).

Please to post comments

Comments are closed.