POLITICS
05/31/2016 06:43 pm ET

Supreme Court Won't Touch This Legal Challenge to Ted Cruz's 'Natural Born' Status

Yes, that controversy is still alive.
Ted Cruz may have lost to Donald Trump, but he's winning the "natural born" battle.
Charles Mostoller/Reuters
Ted Cruz may have lost to Donald Trump, but he's winning the "natural born" battle.

The U.S. Supreme Court won't review a Utah case questioning Ted Cruz's eligibility to be president, one of several similar challenges that have been brewing in lower courts and in which the Texas senator has largely prevailed.

Without explanation, the justices on Tuesday declined to review Wagner v. Cruz, an appeal brought by a retired lawyer who claims that Cruz isn't a "natural born citizen" within the meaning of the Constitution.

A lower court dismissed the case on the basis that the lawyer, Walter Wagner, lacked standing to bring the challenge in federal court. The judge in the case said the alleged harm to Wagner from Cruz's participation in the Republican presidential primary was "conjectural and hypothetical at best." (Cruz was still in the race when the judge ruled in mid-March.)

Wagner appealed in the usual way, but while the case was pending before the U.S. Court of Appeals for the 10th Circuit -- which has yet to rule -- he moved on to the Supreme Court under a rule that allows him to do so if the case is of "imperative public importance."

Apparently Wagner didn't meet that high bar.

Reached by phone on Tuesday, Wagner said claims against Cruz on the natural-born question aren't moot and will have merit for "as long as he's still alive." The lawyer noted that presumptive GOP nominee Donald Trump could drop dead tomorrow and then Cruz would certainly "be back in the race."

Cruz's legal team is due to submit briefs responding to Wagner's appeal before the 10th Circuit by Thursday. After that, the court could issue a summary ruling upholding the dismissal of the case or decide to hold oral arguments and issue a more substantive ruling at a later date.

By and large, federal courts across the country have sidestepped ruling on whether Cruz is a natural-born citizen eligible to be president and have dismissed these cases on procedural grounds. Other state courts and administrative bodies have also sided with the senator.

"Basically it's a cop-out," Wagner said of some of those rulings. "They don't like to make decisions if they don't have to."

While he awaits a final decision from the Denver-based appeals court, Wagner said he wouldn't rule out making a second trip to the Supreme Court if he has to.

"Maybe they'll amend the Constitution in the meanwhile," Wagner said. "Don't hold your breath on that one."

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