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08/27/2016

Derek Muller: 'Natural Born' Disputes in the 2016 Presidential Election
Michael Ramsey

Derek T. Muller (Pepperdine University - School of Law) has posted 'Natural Born' Disputes in the 2016 Presidential Election (Fordham Law Review, forthcoming) on SSRN.  Here is the abstract:      

The 2016 presidential election brought forth new disputes concerning the definition of a "natural born citizen." The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.

First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad — and incorrect — pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a "natural born citizen." This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.

Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.

(Thanks to Seth Barrett Tillman for the pointer).

What I find most noteworthy about the "natural born" disputes of 2016 is the extent to which they focused on the original meaning of the eligibility clause.  To at least some extent, it seems, originalism is (a part of) our law.