In what appears to be the first “birther” challenge against Republican presidential candidate Ted Cruz, an 85-year-old Houston attorney filed a federal lawsuit on Thursday seeking to address what GOP front-runner Donald Trump has labeled the “big question mark on [Cruz’s] head” — that is, whether the Texas senator is a “natural born citizen” and, therefore, eligible to run for president.
“This 229 year question has never been pled, presented to or finally decided by or resolved by the U. S. Supreme Court,” said Newton B. Schwartz Sr. in his 28-page lawsuit filed Thursday in Texas’ Southern District Court. “Only the U.S. Supreme Court can finally decide, determine judicially and settle this issue now.”
The issue in question is that the United States Constitution states, “No person except a natural born citizen” can be president, but does not go on to define the term “natural born citizen.” That ambiguity has left some wondering whether Cruz, who was born in Canada to an American mother and Cuban-born father, meets the standards for president that the founders had in mind.
Cruz is hardly the first presidential candidate to face such scrutiny. John McCain was born at a U.S. naval air station in the Panama Canal Zone; Barry Goldwater was born in Arizona before it was a state; George Romney was born to American citizens living in a Mormon church colony in Mexico. And all three men were able to run for president — a fact Cruz noted in Thursday night’s Fox Business GOP debate.
“If a soldier has a child abroad, that child is a natural born citizen. That's why John McCain, even though he was born in Panama, was eligible to run for president,” Cruz said. “If an American missionary has a child abroad, that child is a natural-born citizen. That's why George Romney, Mitt's dad, was eligible to run for president, even though he was born in Mexico. At the end of the day, the legal issue is quite straightforward.”
Cruz maintains that because his mother is an American citizen, he has “never breathed a breath of air on the planet Earth where [he] was not an American citizen.” (He was actually born a dual citizen of the U.S. and Canada but renounced his Canadian citizenship in 2014.)
Still, questions about his eligibility to run for president aren’t going away. In an interview with The Guardian this week, Harvard law professor Laurence Tribe said the legal and constitutional issues surrounding Cruz’s eligibility were “murky and unsettled.” Trump, meanwhile, warned voters during Thursday night’s presidential debate that nominating Cruz would bring trouble.
“There’s a big question mark on your head, and you can’t do that to the party,” Trump said in one of the most heated moments of the night. “The Democrats are going to bring a lawsuit. And you have to have certainty.”
So far, Schwartz’s is the only lawsuit. And it doesn’t seem likely to land the kind of blow Trump is hoping for.
According to NBC News’ Pete Williams, Schwartz’s suit “has zero chance of success” for two reasons. One, Schwartz probably doesn’t have “legal standing” to sue — a requirement that he show “concrete and particularized” injury, rather than a generalized complaint. And two, the lawsuit probably fails the test of ripeness; Cruz hasn’t even been nominated yet.
“All of this is not to say that substantive lawsuits over the Cruz issue couldn't be filed,” Williams explained. “Another candidate could file a suit. Or a county clerk or secretary of state could argue that it would violate their constitutional oaths to put him on the ballot. But this complaint in Texas meets none of these tests.”
In an interview with CNN Friday afternoon, Schwartz said Cruz should “welcome” the lawsuit.
"It's too expensive to go through the caucuses only to determine that he is not eligible,” Schwartz said. “That is why I brought it, because nobody else did.”
But Cruz’s campaign spokesman Rick Tyler didn’t appear grateful when asked about the lawsuit Thursday night. “I don’t think there will be any standing,” he told reporters following the debate.