Real v. fake legal arguments

I have a piece on the difference between various strains of “natural born citizen” arguments:

A skill all lawyers need to develop is the ability to distinguish between a real legal argument and a fake one. A real legal argument isn’t necessarily a winning argument: rather, it’s an argument that could be expected to have some actual chance of winning the day, given various (realistic) assumptions regarding whatever authority figures will end up deciding whether the argument is right or wrong.

Arguments that Barack Obama wasn’t constitutionally eligible to be president were always fake legal arguments through and through, because there was never the slightest possibility that any federal court was going to accept such an argument. The reason no court would even consider those arguments is that they were all based on an obviously false, and indeed classically paranoid, claim: that Obama wasn’t born in Hawaii.

The argument that Marco Rubio isn’t eligible to be president because his parents weren’t U.S. citizens at the time of his birth– a lawsuit making this argument has just been filed in Florida – is also a fake legal argument. There is essentially no support for this position in American law. It’s the kind of claim, in other words, that can subject a lawyer to sanctions for bringing it. (Orly Taitz, the most indefatigable of the Obama “birthers,” was fined $20,000 by a federal court for bringing a similarly ridiculous claim).

The situation regarding Ted Cruz is completely different. The argument that Cruz isn’t a natural born citizen within the meaning of Article II of the Constitution, and is therefore ineligible to be president, is absolutely a real legal argument. Indeed, the argument that he is eligible, despite being born in Canada, is quite technical, convoluted, and far from compelling.