At the Republican primary debate in North Charleston, South Carolina, Thursday night, Fox Business moderator Neil Cavuto brought up the complicated constitutional question of whether US Senator Ted Cruz, a Republican presidential candidate born in Alberta, Canada, is technically allowed to be chief executive of the United States.
"I'm glad we are focusing on the important topics of the evening," Cruz told Cavuto. Criticizing the moderator is a tactic he's used before to great effect. He had obviously prepared for the subject of his birthplace to come up, and very quickly turned it around on his opponent, Donald Trump, who has been harping on the Cruz birther issue for the past few weeks.
Sadly, there is no way that Ted Cruz can continue running in the Republican Primary unless he can erase doubt on eligibility. Dems will sue!
— Donald J. Trump (@realDonaldTrump)January 13, 2016
"Since September, the constitution hasn't changed, but the poll numbers have," Cruz added, noting that until recently, none of his opponents have had an issue with his Canadian birthplace. "I recognize that Donald is dismayed that his poll numbers are falling in Iowa."
In aggregate polling in Iowa, Trump is neck-and-neck with Cruz, three weeks away from the state's first-in-the-nation caucus vote. And Trump is still doing incredibly well in national polls; an NBC News/Wall Street Journal poll released Thursday put the real estate mogul at 33 percent, up six points from the previous month—results Trump cited early and often during the debate. That same survey showed Cruz in second with 20 percent, down two points from the December numbers.
Trump, in his rebuttal, readily admitted that Cruz's momentum in the polls influenced his decision to go full birther once again. When the debate moderators asked why Trump was bringing up the birthplace issue now, the frontrunner answered, without hesitation, "I didn't care before. Now he's doing better—he's got probably a 4 or 5 percent chance."
But while Trump's handicapping is suspect, he may actually have a point on the birther issue. Most legal scholars admit that the question of whether a person who was born outside of the United States to an American citizen qualifies as a "natural-born citizen," as defined by the Constitution. Trump is probably right that should Cruz be elected as the Republican nominee—or as Trump's vice president, to quote the scenario cited by Trump himself Thursday—Democrats will likely mount a legal challenge to Cruz's candidacy.
"You have a big lawsuit over your head while you're running," Trump warned his opponent, while promising that he would not sue Cruz himself. He then suggested that Cruz would benefit from a legal ruling on the birthplace question before the general election campaign.
"You should go out and let the courts decide," Trump advised. "You have to have certainty. You can't have the question hanging over your head."
Cruz countered that Trump was simply invoking the recent punditry of Laurence Tribe, a Harvard Law School professor whose former students include Cruz and Barack Obama (to whom Tribe was a mentor). Tribe has seized on the birther issue this week, using it as a jumping off point to criticize Cruz's rigid, originalist interpretation of the Constitution.
"Ironically, the kind of justices he says he wants are the ones that say he's not eligible to run for president," Tribe argued in an interview with CNN on Monday. "This is important because the way this guy plays fast and loose with the Constitution, he's a fair weather originalist."
Tribe articulated similar arguments in an op-ed for the Boston Globe Tuesday, calling the Texas Senator a "fair-weather originalist."
"There are lots of reasons to be skeptical about the rigid approach to the Constitution espoused by Cruz and many of his fellow Republican candidates," Tribe wrote. "The rich irony — that it could hypothetically render him powerless to keep one of his most inhumane promises if applied consistently — is just the latest example of why constitutional interpretation matters. And why candidates should be careful what they wish for."
Trump, for his part, didn't entertain the idea Cruz would become the Republican nominee. But while he and Cruz may officially be enemies now, it seems the reality TV star still considers a Trump-Cruz ticket a possibility in 2016.
"I choose him as my VP, and the Democrats sue?" Trump suggested. "So I can't take him along for the ride? I don't like that."
Follow Mike Pearl on Twitter.