ConLaw Exam Question: What if #SCOTUS Tied 4-4 on Ted Cruz’s Eligibility for the Presidency?

June 17th, 2016

My second question on my Spring 2016 constitutional law exam imagined a Bush-v-gore-stlye constitutional crisis surrounding a deadlocked vote on Ted Cruz’s eligibility for the Presidency. But there are some interesting twists with Congress’s efforts to provide a legislative solution. I wrote this before the Indiana primary (wishful thinking, huh?) so suspend your disbelief.

Instructions: You are a law clerk for Chief Justice John Roberts. He has asked you to prepare a memorandum addressing five issues about a case arising from the 2016 Presidential election. Four of these questions will be based on issues from before the case is argued, and the fifth question arises after the case is argued. Please be sure to answer all five questions with no more than 1,000 words. Suspend your disbelief.

Today is November 9, 2016. Yesterday, in the presidential election, Republican Ted Cruz defeated Democrat Hillary Clinton, by an anticipated electoral-college majority of 287 to 251. (A candidate needs 270 electoral votes to win the election). However, there is a constitutional crisis. Katherine, the Secretary of State of Pennsylvania, refuses to certify any votes cast for Cruz. She asserts that Cruz is ineligible to become President because he is not a natural born citizen. Ted Cruz was born in a Canadian hospital to a U.S. Citizen mother.


Katherine cites Article II, Section 1, Clause 5, which provides:


No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.


Katherine, a Democrat, announced that she would only certify the votes for Clinton. As a result, Clinton would receive all of Pennsylvania’s twenty electoral votes. This decision would flip the outcome of the election, with Clinton receiving 271 votes, and only 267 for Cruz. Clinton would then become the 45th President.


Cruz immediately protests, claiming that he is eligible to be President, and his votes should be certified. Cruz argues that a person born abroad to a U.S. citizen parent is a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Panama Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose. And the people of Pennsylvania so chose.


With the transition of power in flux, the House and Senate quickly vote on, and pass the Natural Born Citizen Act of 2016 (NBCA). The act has five sections:


Section 1: For purposes of Article II, Section 1, Clause 5, a person who is born to a U.S. Citizen is a “natural born citizen,” regardless of where the person is born.

Section 2: This Act shall apply to all presidential candidates who received votes prior to November 9, 2016.

Section 3: The interpretation of the Constitution offered in Section 1 shall be binding on all federal courts.

Section 4: All executive officers of the several states shall be bound by this Act.

Section 5: All constitutional challenges to this Act shall be heard before a three-judge panel in the U.S. District Court of the District of Columbia. The judgment from this court shall be reviewable by appeal directly to the Supreme Court of the United States.


President Obama, who has had his own experiences with the Natural Born Citizen clause, vetoes the bill. Publicly he states that he has doubts about the law’s constitutionality, because Congress cannot impose its interpretation of the Constitution on the other branches. Privately, however, he admits that he wants his former Secretary of State to become President over Cruz. To the surprise of many, in a rare act of bipartisanship, the Senate and House override the President’s veto. (Suspend your disbelief). The NBCA becomes law.


Katherine announces that Section 4 of the NBCA is unconstitutional, and states that she will not certify Cruz’s votes. Pursuant to Section 5 of the NBCA, Cruz files suit against Katherine before a three-judge panel of the U.S. District Court for the District of Columbia. Cruz is seeking a declaratory judgment of whether NBCA is constitutional. Clinton, who has a concrete injury in the outcome of the case—the presidency—intervenes, and argues that the act is unconstitutional in its entirety.


The three-judge panel hears arguments on November 19—exactly one month before the electoral college must vote on December 19. The oral arguments are fiercely divided, and the next day the three judges jointly issue a stunning, one-sentence order: “With this court unable to reach a timely resolution of the claims, pursuant to 28 U.S.C. § 1254, we certify this case to the Supreme Court of the United States for a final resolution.” Through this arcane procedural move, a decision in the lower court is bypassed, and the case is sent directly to the Supreme Court.


On November 24, the Supreme Court agreed to hear the certified case, limited to the questions of whether sections 1, 2, 3, and 4 of the NBCA are constitutional. Following a brutal briefing schedule, oral arguments are scheduled for December 1.

Before oral arguments, the Chief Justice asks you to prepare a memorandum that answers the following four questions:


  1. Under what authority can Congress enact Section 1 of the NBCA?
  2. Is Section 2 of the NBCA constitutional?
  3. Is Section 3 of the NBCA constitutional?
  4. Is Section 4 of the NBCA constitutional?


After arguments, the Justices hold their private conference the morning of December 2. The meeting usually takes an hour. However, that day the Chief Justice returns to chambers twelve hours later. He tells you, “The Court has divided evenly, 4 Justices to 4 Justices. With Justice Scalia’s absence, there is no way to cobble together a majority opinion.” You ask, “Can’t you reach a compromise?” The frustrated Chief Justice replies, “We tried for twelve hours. No one is willing to budge.” (Suspend your disbelief).


Under the Court’s normal practice, when the Justices deadlock on a 4-4 tie, the judgment of the lower court is affirmed. However, due to the fact that the three-judge panel did not render a decision—they certified the case to the Supreme Court—there is no judgment to affirm. A tied vote before the Supreme Court would leave unresolved the constitutional crisis.


The electoral college is scheduled to meet in two weeks, and Katherine still refuses to certify the votes for Cruz.


The Chief Justice asks you to answer a final question. In answering this final answer, put aside your personal preference of which candidate you support. Remember, your answer for all five parts must total no more than 1,000 words. Think carefully about your answer.


  1. What happens next?