Saturday, January 16, 2016

Schwartz v. Cruz: Mr. Eligibility Clause May Get His Day in Court


  • Planned Parenthood rues the day that Kermit Gosnell's house of horrors came to light.
  • Pro-life activists rue the day that someone shoots and kills an abortionist.
  • Reasonably minded Muslims rue the day when ISIS, in the name of Islam, sliced heads off nonbelievers, crucifies non-believers, burns non-believers alive in a cage.

What do these folks all have in common?

Each has a core belief, one that, at least putatively, is shared by another person, a person that has committed some kind of heinous, despicable, publicly repudiated action. The horrific act of another doesn't move them from their essential faith in that core belief, whether it is a belief in the innate right to life of every person, the inviolability of a woman's right to choose, or the transcendence of the truths of Islam. They don't see their core belief as corrupted, they see the unhinged act of another as such.

Why do I mention these points?

Because Schwartz Newton Sr Atty​ has filed a lawsuit in the US District Court in Texas against Senator Ted Cruz​. That lawsuit seeks a judgment on the question of whether Cruz meets the constitutional requisite qualification -- being a natural born citizen -- to be elected president.

I have reviewed the complaint. I mean no disrespect to Mr. Schwartz, and I certainly cannot predict the outcome of the litigation at this time , but for two decades I served as Senior Counsel at the American Center for Law and Justice​ and in that time, I drafted many federal lawsuits, and reviewed drafts of many more drawn up by colleagues, younger associates, and the like.

No colleague of my acquaintance would have brought this particular draft to me and presented it with satisfaction in its essential nature or execution. They would have said, "I'm having trouble pulling this together. Can you review it and give me some guidance on how to turn this complaint into a workable piece of craftsmanship?"

The complaint is loquacious, uncertain, and at times, self-defeatingly so. I could easily see the lawsuit initiated by this document being dismissed by a trial court on an early motion to dismiss for failure to state a claim on which relief may be granted. A hundred fifty years ago, the courts of this nation required litigants to cross every "t" and dot every "i" in a "just so" fashion, referred to as "code pleading." Litigants bounced from courts higher than a Superball and faster than an Olympian in the 40 yard dash because technical flaws -- not essential justice -- plagued their pleadings.

Today, a more relaxed rule results in a better survival rate for lawsuits when a defendant moves for an early dismissal. Courts require, rather than jots and tittles, a short, plain statement of the facts and the grounds on which relief should be granted.

Mr. Schwartz raises an issue I believe to be of great importance.

I realize that Cruz supporters disagree with me on the importance of that issue. I have examined the question thoroughly, and brought to that examination the same legal skills, training, and experience that I employed in representing litigants in many other cases pressing for interpretations and re-interpretations of the Constitution, federal laws, and federal regulations. I have concluded
that Cruz's birth outside the US makes him ineligible to be president, though it does not make him ineligible to serve in the Senate (although it does not bar Congress from doing as it did, making him a naturalized citizen of the US at the time of his birth, because his mother was a citizen who met the statutory preconditions to be able to extend that status to him); 
that the Constitution does not empower Congress to redefine the meaning of "natural born citizen" by enacting a statute expanding that term to circumstances of birth such as Cruz's (and McCain's, and George Romney Mitt Romney​'s father); 
that even if the Constitution did give that power to Congress, Congress has not used that power to redefine "natural born citizen" to persons in Cruz's circumstances (in one, and only one instance, the 1790 Naturalization Act, Congress used its power to provide a uniform rule of naturalization to declare that certain offspring born abroad to US citizens would be "natural born citizens" at their birth; just five years later, in the 1795 Naturalization Act, Congress repealed their earlier statute and replaced it with one granting status as "citizens" to such persons; Congress has never again used its naturalization power to grant, by express terms, "natural born citizen" status to persons in Cruz's circumstance).
These are important questions.

We have lived through seven years of disregard for the Constitution by this administration. The President has no recognizable sense of the limits of his authority. He has been sat back on a few occasions, most notably when the Supreme Court declared that certain "recess appointments" he had made violated the clause of the Constitution that allows the President, during a congressional recess, to make temporary appointments to fill vacancies in offices that arise during those congressional recesses.

The problem is that such overreach that ignores the terms and meanings of the Constitution result in government that goes outside its limited purposes and scope. We move from, in the appointments cases, a nation whose bureaucratic functionaries get at least some basic level of screening to the half-cocked and most controversial appointments just because the President suspects he can get away with it.

We cannot risk compounding the problem by ignoring the Constitution or making light of the concerns raised here just because we hope to have the upper hand by doing so. It is unprincipled to do so, and it bears the seed of its own destruction. The Constitution will become a byword, not a marvel, if we simply ignore its inconveniences.

So, I am glad to see the lawsuit. Sort of glad, in any event.

Still, because it is heavy, wordy, and murky, I am concerned that even if its basic assertion -- that the status of Cruz's eligibility is, at best, uncertain and needs be resolved by resort to a judicial construction of the Presidential Eligibility Clause -- is correct, there is every possibility that a dismissal resulting from having failed to mount the best available challenge will translate into an erroneous and powerful message that the challenge to Cruz's (and McCain's and Romney's father's) eligibility was unwarranted and unfounded.

On top of the unwieldy wordiness of the complaint, there are additional problems presented by the Schwartz complaint that could result in dismissal early in the proceedings. Such a dismissal would not depend on the rightness of those that say that Cruz is a natural born citizen, or the wrongness of those that disagree. Rather, such a dismissal could result from either of two common approaches that courts often take in highly controversial litigation related to the political process.

First, every lawsuit in federal court must relate to an actual "case or controversy." Courts are not supposed to take on hypothetical disputes, forecasting what would be right or wrong about some as yet to be taken future action by a person or organization or agency.

If you are worried, for example, that the Division of Motor Vehicles would refuse your vanity license plate application for a tag that reads, "GoGod," the chances of getting a substantive decision, rather than a dismissal of your suit, are substantially enhanced by filing your plate application at the DMV and waiting on their decision denying your tag request. Then you go into court. Then the facts are certain. Then the parties affected and needed for resolution are known. Courts were never intended to play the role of the Government's Palmistry or Crystal Ball reader.

Part of the search for whether an actual case or controversy is involved in a particular lawsuit examines whether the person bring suit "has standing." I won't get into technicalities, but it suffices here simply to say that, for example, when a person goes to court they have to show that they suffer a particularized and unique injury separate and apart from that suffered by all others.

Here, attorney Schwartz has actually filed his lawsuit both for himself and as  "Class representative and/or on behalf of all eligible Texas and nationally United States registered eligible and/or qualified voters for voting in the 2016 fifty state election primaries and in the November 1, 2016 general presidential and vice president 2016 elections." By proposing that his complaint be treated as a class action for himself and every other eligible voter, he suggests, quite powerfully, that his injury in facing a primary or general election ballot with Cruz as a candidate on it is NOT unique, not an individualized injury, and is not likely to provide a basis for him to have standing to complain.

Second, courts often decline to decide a category of cases that courts conclude are best and properly decided by the elected branches of government.

While courts are not barred from doing so, prudential considerations often drive the Supreme Court and lower federal courts from deciding cases that present "political questions." Again, I won't drag you into a detailed legal discussion. The essence of the political question doctrine is that, where a matter brought before a court is one that, as presented, is left to resolution by the "political branches" (Congress and the Executive), courts will refrain from deciding the case.

Here's a quick illustration. The Constitution grants each chamber of Congress the power to make its own rules of procedure. If Congressman X, as a result of rules of the House, undergoes a censure by the House, he might file a lawsuit complaining that the House censure violated his rights. Undoubtedly a court in such a case would agree that his injury is individual, unique. But the Constitution does make the House the judge of its own rules, and, as a consequence, courts have often declined cases of this sort because they are best resolved in the political branches.

There are at least two separate indications that Attorney Schwartz's lawsuit presents just such a political question.

Basic questions regarding eligibility to be placed on a ballot are, typically, resolved by state statutes setting out that such requirements must be met and to what official or agency  satisfactory proof of eligibility must be provided. In Virginia, for one example, state law requires that would-be candidates for local office provide proof of eligibility for office to the local board of elections and that candidates for state wide office provide proof of eligibility to the State board of elections.

The sole exception to that proof requirement is the one in dispute here. Candidates for election to the presidency are not required to provide any evidences of their eligibility on any ground ... not age, not duration of residency within the United States, and not status as a natural born citizen. If Virginia, or other States chose to do so, they could require candidates to the presidency to provide such proof when submitting their papers to be placed on the ballot. Because the state legislatures of the Nation could resolve this dispute by requiring such proof in the candidacy process, a court could justifiably refrain from deciding such a political question.

There is an intervening body of actions between a decision by a candidate to stand for election and their inauguration as President. Primary election processes, convention processes, general election processes, Electoral College processes, and the congressional role in certifying the results of the Electoral College. These intervening political agencies all provide ample alternatives to judicial resolution of the question of eligibility such that a court might refrain from making a decision on that ground.

Were I responsible for quarterbacking the resolution of this contentious question, I wouldn't be filing Mr. Schwartz's lawsuit. Rather, I would be seeking a political solution in which a state board of elections refuses the candidacy registration of Cruz on the ground of his perceived/real ineligibility because of not being a natural born citizen. In that case, no doubt, Cruz would suffer an individual, particularized, and unique injury. He alone would be denied access to the ballot, and the judgment denying him access would be based on the particular facts of his birth. Such a case would certainly meet the requirement of standing. It aught also to avoid the political question doctrine because resolution of disputes over the meaning of the terms of the Constitution -- rightly or wrongly, for better or for worse -- is viewed as the particular provenance of the courts.

Schwartz seeks a rapid decision from the trial court. He does so because, ultimately, of course, if any court decides this case on its substance and excludes Cruz from the ballot, there is virtually no likelihood that the Supreme Court will stay out of the dispute when the case comes to them. Still, the improbably short time between now and the first caucuses and primaries set a hard path for any court taking this dispute on substantively and for the litigants seeking such a court's decision on the questions.

Though I am not typically a betting man, I come away from reading the complaint in Schwartz's case with the view that his suit is not likely to succeed, or to be long-lived in the federal court in Texas.