‘Birther’ Lawsuit Opens Pandora’s Box

There’s a reason the Supreme Court has never decided a case of “Natural Born Citizen.” It’s a Pandora’s box filled with evil and second-class citizenship.

SCOTUS never decided a case of who owns real estate on the moon either, but that doesn’t mean you can buy a crater. However, since there’s now a lawsuit filed to determine just what a “Natural Born Citizen” is, we can ask exactly how stupid it would be to really address the question.

While former prosecutor Andrew C. McCarthy put the question to bed, legally, I kicked it around with my lawyer buddies to see exactly how far down the stupid hole this thing goes. It goes pretty far.

Jonah Goldberg put it in perspective, noting that the term only applies to one job: President of the United States.

Now imagine there are also all sorts of jobs you are barred from having. Not only can you not be president, but you can’t be, say, a chiropodist or an embalmer. Pick your restrictions: You can’t go to certain colleges or you can’t get the best ESPN bundle. Americans born abroad can’t buy basset hounds. Unless you were born here, you can’t get cheese on your hamburger. Whatever. It really doesn’t matter.

If the high court defined “Natural Born Citizen” to mean something besides “anything other than a naturalized citizen” (which is the only definition in use now), it would create a new category of citizenship. A second-class citizen who is technically not naturalized, but not eligible for the benefits of being “natural born,” that one benefit being the presidency.

If that were the only possible application, the Court would certainly find it to be surplussage. But there are other applications which would certainly emerge in current law. If only a natural born citizen, under a new definition, is qualified to serve as president, should Congress revisit the line of succession? There’s a “failure to qualify” disclaimer in the current version of the Presidential Succession Act, but what would constitute a failure?

Should Congress decide to create boundaries around succession that keeps non-natural born citizens out of the lineup? How about the Vice President, which Trump specifically mentioned? Should the Secretary of State be natural born? Speaker of the House? President Pro-Tempore of the Senate?

For that matter: Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security. They are all in line.

And then you get to the “best ESPN bundle” argument Goldberg made.

This lawsuit has terrible consequences if the courts should decide to do anything but dismiss it, because it creates a third category of U.S. citizen without fully considering the potentially massive consequences of such an act. If the only purpose of the lawsuit (which it most certainly is) is to plant doubt about Cruz’s eligibility, and give Trump an excuse to pander to Rubio as a potential VP pick, then it should be heaped quickly into the dustbin of irrelevant lawsuits that don’t deserve the court’s attention.

And it should be done quickly, or else Trump will have accomplished what he admitted he set out to do: sink Cruz because he’s rising in the polls.

P.S. One more point my lawyer friend mentioned: Nobody goes to court seeking a declaratory judgment (as Trump recommended to Cruz) for something they know isn’t wrong. You don’t ask permission to do something that’s legal or unchallenged. Cruz is absolutely right to say he won’t be taking legal advice from Donald Trump.

About the author

Steve Berman

The old Steve cared about money, prestige, and power. Then Christ found me. All at once things changed. But the Holy Spirit produces this kind of fruit in our lives: love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control. There is no law against these things!

I spent 30 years in business. Now I write and edit. But mostly I love. I have a wife and 2 kids and a dog and we live in a little house in central Georgia.

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