This column by ACRU Policy Board member J. Christian Adams was published January 15, 2016 on PJ Media.
For the last seven years, the nation has suffered under a president who ignores the law and treats the legal process as a political weapon. Yet in the most recent Republican debate, Donald Trump displayed a clownish, similar disregard for the law when he demanded Senator Ted Cruz “get a declaratory judgment” about his eligibility to run for president.
The meritless nature of Trump’s birther controversy was neatly summarized by Susan Carleson in the Washington Times:
As the Supreme Court made clear, there are only two types of American citizenship — citizens at birth, such as Sen. Cruz, and those who become citizens through the naturalization process.
A declaratory judgment is when a judge, in a legitimate contested lawsuit, makes a ruling about which side is correct about a legal controversy.
Trump has some knowledge of this process — because of what he did to Vera Coking.
Vera Coking lived for 30 years in a modest Atlantic City home, until Trump coveted her land. As David Boaz summarizes:
Trump turned to a government agency — the Casino Reinvestment Development Authority (CRDA) — to take Coking’s property. CRDA offered her $250,000 for the property — one-fourth of what another hotel builder had offered her a decade earlier. When she turned that down, the agency went into court to claim her property under eminent domain so that Trump could pave it and put up a parking lot.
Coking wasn’t the only person who faced a declaratory judgment because Donald Trump wanted the government to take their land for his private benefit. He did the same thing to others in Atlantic City, and proposed the same for an amusement park in Connecticut. Trump still supports the abusive eminent domain practices that took the home of Susette Kelo in New London, Connecticut.
This anti-constitutional abuse of property rights rivals the worst sort of inside-the-Beltway cronyism that Trump supporters hate.
It isn’t a surprise that Trump might believe declaratory judgments can solve legal impediments to getting what he wants. But in the case of the eligibility of Ted Cruz to serve as president, Trump’s taunt is absurd.
First, court cases require a real case or controversy. Without it, courts do not have jurisdiction to hear a case. The term “case or controversy” mean more than “Donald Trump thinks there is a case or controversy.” It means a genuine clash of interests is occurring.
Trump and his cronies in Atlantic City government, for example, wanted to take Vera Coking’s home. She wanted to keep it. Thus, a real case or controversy existed, and courts had the power to hear the case.
A case or controversy requirement in federal court is a constitutional limit on the power of government. It restrains unelected judges from meddling in affairs they shouldn’t. It means government has less power because judges can’t simply declare things to be. It is a requirement born out of reverence for limiting government power.
Second, who would have standing to bring the Cruz declaratory judgment case?
Standing is another legal concept that limits the power of government. If a plaintiff in a federal court case has not suffered an injury of some sort, the court has no authority to hear the matter and meddle in the affairs of American citizens. Vera Coking would have had standing to sue because Trump’s friends in city government were trying to take her home. Cruz has suffered no injury. He is on the ballot, not off. Cruz has only suffered injury from Trump’s bombast. That isn’t enough to give a court power.
Standing cannot be had because there might be a speculative injury in the future. Speculative injuries are not yet “ripe.” Ripeness is another way that the Constitution limits the power of the federal courts over our lives. Judges have no authority to “declare” anything when no injury has occurred.
Perhaps you’ve noticed a trend about Trump and limits on the power of government.
Finally, who would the defendant be in Trump’s outlandish “declaratory judgment” case?
Trump himself? The news media? Fox Business Network? The Atlantic City Casino Reinvestment Development Authority would serve as good as a defendant as any. The bottom line is that there is no defendant injuring Ted Cruz over Trump’s legally flawed birther attack.
The American system of justice is respected because the courts have restrained powers. Restraints on the power of judges to declare this or that fact are important because they prevent judges from issuing edicts when they have no constitutional authority to do so.
We’ve had a president for seven years comfortable with edicts. Trump’s comments on this manufactured birther controversy resemble someone else’s disregard for legal institutions that restrain government power.