6th Republican Debate – #SCOTUS, 2nd Amendment, #Obamacare, Natural Born Citizens, and Executive Orders

January 15th, 2016

In this post, I will highlight some of the legal discussions at the 6th Republican Debate in South Caroline.

Fairly early on in the debate, Neil Cavuto asked Ted Cruz about the natural-born-citizen issue. Cruz handled it a number of ways.

First, he explained that Donald earlier had told him that his lawyers had checked out the issue, and there was no problem with his candidacy. But with the polls tightening in Iowa, Donald has suddenly re-birthed birtherism:

You know, back in September, my friend Donald said that he had had his lawyers look at this from every which way, and there was no issue there.There was nothing to this birther issue.


Now, since September, the Constitution hasn’t changed.


But the poll numbers have.


And I recognize — I recognize that Donald is dismayed that his poll numbers are falling in Iowa.

Second he explained the constitutional issue in a fairly understandable manner, by focusing on people like earlier Republican candidates for President, including John McCain and George Romney:

But the facts and the law here are really quite clear. Under longstanding U.S. law, the child of a U.S. citizen born abroad is a natural-born citizen. 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. 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.

Third, in a twist that very few people actually understood, Cruz turned the birther issue around on Trump–some people insist that only a child born of two natural born citizens is a natural born citizen (this is a bizarre birther theory that bubbled during the 2008 and 2012 elections):

I would note that the birther theories that Donald has been relying on — some of the more extreme ones insist that you must not only be born on U.S. soil, but have two parents born on U.S. soil. Under that theory, not only would I be disqualified, Marco Rubio would be disqualified, Bobby Jindal would be disqualified and, interestingly enough, Donald J. Trump would be disqualified. Because — because Donald’s mother was born in Scotland. She was naturalized. Donald, on the issue of citizenship, Donald, I’m not going to use your mother’s birth against you.

In one of the more surreal moments of the evening, Trump cited Laurence Tribe.

Lawrence Tribe and (inaudible) from Harvard — of Harvard, said that there is a serious question as to whether or not Ted can do this. OK? There are other attorneys that feel, and very, very fine constitutional attorneys, that feel that because he was not born on the land, he cannot run for office.

99% of the audience watching had no idea what this meant, but for those who read this blog, I am sure you are familiar with who Tribe is, and the role he played in ending Robert Bork’s nomination for the Supreme Court, and subsequent support of Anthony Kennedy. Tribe was one of Al Gore’s lawyers in the Florida litigation, and was expected to argue Bush v. Gore in the Supreme Court, though David Boies was picked. Tribe was also viewed as a potential Supreme Court Justice, although he was likely persona non-grata in the Senate after his work on the Bork nomination. Finally, Tribe blurbed my first book, Unprecedented.

Then, in another surreal moment, Donald Trump used the phrase “declaratory judgment.” I almost fell out of my chair. CivPro teachers nationwide rejoice that the Donald knows what a Dec is.

But — if for some reason, Neil, he beats the rest of the field, I already know the Democrats are going to be bringing a suit. You have a big lawsuit over your head while you’re running. And if you become the nominee, who the hell knows if you can even serve in office? So you should go out, get a declaratory judgment, let the courts decide. … I mean, you have great constitutional lawyers that say you can’t run. If there was a — and you know I’m not bringing a suit. I promise.

You know, Title 28 of the U.S.C. code is YUGE!

Cruz refused to take legal advice from the Donald:

Well, listen, I’ve spent my entire life defending the Constitution before the U.S. Supreme Court. And I’ll tell you, I’m not going to be taking legal advice from Donald Trump.

So Trump threw back Larry Tribe!

You don’t have to. Take it from Lawrence Tribe. Take it from your professors…

Ted threw Tribe as far as he could:

The chances of any litigation proceeding and succeeding on this are zero. And Mr. Trump is very focused…… on Larry Tribe. Let me tell you who Larry Tribe is. He’s a left-wing judicial activist, Harvard Law professor who was Al Gore’s lawyer in Bush versus Gore. He’s a major Hillary Clinton supporter. And there’s a reason why Hillary’s supporters are echoing Donald’s attacks on me, because Hillary… … wants to face Donald Trump in the general election.

A search of the FEC database shows that Tribe has not given anything to Hillary Clinton, or Bernie Snaders for that matter, though in the past he has contributed to Barack Obama, Barbara Boxer, Joe Biden, Al Franken, Elizabeth Warren (his former colleague), Ted Kennedy, John Kerry, Diane Feinstein, Russ Feingold, Martha Coakley, and the Democratic Congressional Campaign Committee.

In any event, that this is the most high-minded legal discussion at any debate I’ve seen is remarkable.

Next Rubio said he would repeal the President’s executive orders:

This election has to be about reversing all of that damage. That’s why I’m running for office because when I become president of the United States, on my first day in office we are going to repeal every single one of his unconstitutional executive orders. When I’m president of the United States we are getting rid of Obamacare and we are rebuilding our military.

Rubio also dinged Christie for endorsing Sonia Sotomayor:

RUBIO: Unfortunately, Governor Christie has endorsed many of the ideas that Barack Obama supports, whether it is Common Core or gun control or the appointment of Sonia Sotomayor

In 2009, Christie said this of then-Judge Sotomayor:

“After watching and listening to Judge Sotomayor’s performance at the confirmation hearings this week, I am confident that she is qualified for the position of Associate Justice of the U.S. Supreme Court. Elections have consequences. One of those consequences are judicial appointments. While Judge Sotomayor would not have been my choice, President Obama has used his opportunity to fill a seat on the Supreme Court by choosing a nominee who has more than proven her capability, competence and ability.”

And then, of all people, Ben Carson explained the stakes of the next election, as it could result in 3 #SCOTUS picks!

You know, we have to stop this because, you know, if we manage to damage ourselves, and we lose the next election, and a progressive gets in there and they get two or three Supreme Court picks, this nation is over as we know it. And we got to look at the big picture here.

Jeb Bush endorsed some sort of mental health legislation that would disarm people “spiraling out of control.”

BUSH: The president’s first impulse is do this by executive order, power he doesn’t have. Why not go to Congress and in a bipartisan way, begin to deal with the process of mental health issues so that people that are spiraling out of control because of mental health challenges don’t have access to guns.

Donald Trump described himself as a “2nd Amendment person”:

TRUMP: No. I am a 2nd amendment person. If we had guns in California on the other side where the bullets went in the different direction, you wouldn’t have 14 or 15 people dead right now. If even in Paris, if they had guns on the other side, going in the opposite direction, you wouldn’t have 130 people plus dead. So the answer is no and what Jeb said is absolutely correct. We have a huge mental health problem in this country. We’re closing hospitals, we’re closing wards, we’re closing so many because the states want to save money. We have to get back into looking at what’s causing it. The guns don’t pull the trigger. It’s the people that pull the trigger and we have to find out what is going on. We have to protect our 2nd amendment and you cannot do this and certainly what Barack Obama was doing with the executive order. He doesn’t want to get people together, the old-fashioned way, where you get Congress. You get the Congress, you get the Senate, you get together, you do legislation. He just writes out an executive order. Not supposed to happen that way.

Rubio explained that people are buying more guns because they are afraid of the President taking them away:

That sounds like people are afraid the president’s going to take their guns away. (APPLAUSE) Look, the Second Amendment is not an option. It is not a suggestion. It is a constitutional right of every American to be able to protect themselves and their families. I am convinced that if this president could confiscate every gun in America, he would. I am convinced that this president, if he could get rid of the Second Amendment, he would. I am convinced because I see how he works with his attorney general, not to defend the Second Amendment, but to figure out ways to undermine it. I have seen him appoint people to our courts not to defend the Second Amendment, but to figure out ways to undermine it. … When I’m president of the United States, we are defending the Second Amendment, not undermining it the way Barack Obama does. … When he meets with the attorney general in the White House, it’s not “how can we protect the Second Amendment rights of Americans.” It’s “give me options on how I can make it harder for law-abiding people to buy guns.” That will never happen when I am president of the United States.

Christie offered an answer about executive power.

CHRISTIE: No, absolutely not. The president wants to do things without working with his Congress, without working with the legislature, and without getting the consent of the American people. And the fact is that that’s not a democracy. That’s a dictatorship. And we need to very, very concerned about that.

He added that the 2nd Amendment is listed 2nd because it is so important. (As even my students know, it was the 4th proposed amendment):

See, here’s the thing. I don’t think the founders put the Second Amendment as number two by accident. I don’t think they dropped all the amendments into a hat and picked them out of a hat. I think they made the Second Amendment the second amendment because they thought it was just that important.

Ted Cruz charged that Eric Holder and Sonia Sotomayor were radicals opposed to the 2nd Amendment:

Well, he appointed Eric Holder as attorney general. Eric Holder said he viewed his mission as brainwashing the American people against guns. He appointed Sonia Sotomayor to the Supreme Court, someone who has been a radical against the Second Amendment right to keep and bear arms.

Cruz added that Hillary and Dianne Feinstein support the Heller dissenters:

And I’ll tell you what Hillary Clinton has said: Hillary Clinton says she agrees with the dissenters — the Supreme Court dissenters in the Heller case. There were four dissenters, and they said that they believe the Second Amendment protects no individual right to keep and bear arms whatsoever, which means, if their view prevailed and the next president’s going to get one, two, three, maybe four Supreme Court justices, the court will rule that not a single person in this room has any right under the Second Amendment and the government could confiscate your guns. And I’ll note that California senator — Democratic Senator Dianne Feinstein said, if she could say to Mr. America and Mrs. America, “give me your guns, I’m rounding them up,” she would.

Chris Christie alluded to the issue of prosecutorial discretion by having this conversation with his Attorney General:

Here’s what I would do Neil, I would appoint an Attorney General and I would have one very brief conversation with that Attorney General. I’d say, “General, enforce the law against everyone justly, fairly, and aggressively. Make our streets safe again. Make our police officers proud of what they do but more important than that, let them know how proud we are of them.”

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz, Hillary Clinton, and Bernie Sanders.

Disclosure: I advise the Rand Paul campaign.