I don't know how funny a standup comic he may be, but Dean Obeidallah is excellent at trolling. At the Daily Beast website yesterday in a piece headlined, "Hey Supreme Court, Please Settle This Ted Cruz Birther Thing," the liberal writer agreed with the Manhattan real-estate developer that "it would be 'very precarious' if Ted Cruz were the GOP nominee given that Cruz was undisputedly born in Canada":
Think about the impact it would have to our nation as we collectively waited for the Court's decision. It would be a national crisis. Our allies would not know who is actually our president, and our enemies might use the crisis to their advantage. Plus it would cause a dramatic drop in the stock market (investors hate uncertainty.)
Don't get me wrong, he quickly added, using a paint-by-numbers concern-trolling tactic:
...I’m neither a Cruz birther nor am I advocating that Cruz may be ineligible to be president. What I’m saying is that the Supreme Court has not addressed the specific of issue whether a person in Cruz’s position is eligible to be president in accordance with the requirements of the U.S. Constitution.
Specifically, Article II, Section 1 of the Constitution provides that a person cannot be president unless he or she is “a natural born Citizen.” Cruz was born in Calgary, Canada in 1970 and first moved to the United States when he was four years old. At the time of Cruz’s birth, his mother was a United States citizen but his Cuban-born father was not.
But, and it's a big but, Obeidallah continued:
So is Cruz a "natural born citizen"? There are countless articles debating this issue. While some legal scholars support Cruz’s eligibility, others like Fordham Law School constitutional law professor Thomas Lee informed me that the question of whether Cruz is a “natural born citizen” can be answered with two words: “It depends.”
Lee, who was an editor of the Harvard Law Review and clerked for Supreme Court Justice David Souter, explained that the issue could go either way. Lee noted there are two views of constitutional interpretations that he believes would support Cruz—the textualist and evolutionist views.
But under the “originalist” view, Cruz could be deemed ineligible. Constitutional orginalists interpret the Constitution by looking at the meaning of the document when it was originally written. Ironically, Cruz is a constitutional originalist and that is part of his appeal to conservatives. As Lee noted, Cruz should actually disqualify himself from the presidency if he remained true to being an originalist.
Once again, however, while learned people have offered well-reasoned opinions, we still don’t have the definitive guidance of the Supreme Court on this issue. But this is no academic exercise. There were already objections filed in New Hampshire to knock Cruz off the ballot for being ineligible.
You see where he's going, right? Obeidallah sees this as the perfect indictment of constitutional conservatism in general and of one of its most prominent advocates, Sen. Ted Cruz. "Wouldn't it be hilarious if his constitutional conservatism is the thing that does in his presidential hopes," he seems to be saying.
That's fine as cheap clickbait concern-trolling goes, but the fact remains that the courts would be incredibly loath to take up a challenge, assuming you actually had anyone with standing to sue to bring forth a case in the first place. As conservative blogger and attorney Gabriel Malor explained back in 2009 in the height of birther rage (emphasis mine):
The Birthers want the courts to void an election and overthrow a President. That is not something that the Constitution gives courts the authority to do. In fact, the Founders kept the courts away from elections and away from sitting presidents. Ultimately, the Constitution gives Congress the power to unseat Presidents. Not the courts. Hence, when I say that Birtherism is inherently anti-constitutional, I mean they are asking for something so heinously contrary to American tradition that it makes my blood boil.
In the same vein, it is anti-democratic because they are looking to overturn the judgment of a majority of voters in this country that President Obama is eligible to serve. They want to disregard the wishes of a majority of voters. They want to throw out their votes. I find that equally offensive as their desire to ignore the Constitutional scheme with regard to removing Presidents from office.
The Twelfth Amendment gives to the Electors (that is, the members of the Electoral College) the power to vote for the President. Ultimately, it is their judgment--backstopped by Congress, which certifies their votes--that carries the day. And in the present case, the Electors deemed Obama fit for the Presidency. That should be the end of the discussion. The voters voted. The Electors elected. They fulfilled their constitutional roles and the courts have no business going around them.
Somewhere, somehow, people got the impression that all disputes are meant to be resolved by the courts. But it's just not true. The Constitution gives the courts no special authority to overrule the Electoral College. Many have suggested that the Constitution would not list requirements for the presidency if there was no one to enforce them. The Birthers are ignoring the most basic component of our democracy: the voters. They get to enforce the requirements for the presidency. The Birthers are ignoring the Electoral College. They also get to enforce the requirements for the presidency. And the Birthers are ignoring the Congress, which certifies the vote. All three are designated by the Constitution to participate in the process of choosing a President. Do you know who isn't constitutionally part of that process? The courts.