I am not a lawyer, obviously, but did he have to wait for somebody to file a case like the lawyer in Houston did last week? Otherwise what process would he do in order to get a decision out of the SC? And of course, nobody is going to be satisfied by any decision by a lower court.
A so called declarotory (sp) ruling as Trump has talked about for a few weeks now would not have any authority. A SC ruling is going to be the only final ruling that nobody could appeal and it would be the end of it, one way or the other.
This issue still largely falls in the "political" theater and not yet in "legal" theater, and as such can still be won using politics. All Cruz has to do is :
- signal to the People that he takes our concerns for his eligibility seriously
- make a campaign promise that once seated as POTUS he will use the influence of the Executive Branch of government to formally request the Judicial Branch of government to provide clarity as to the "original intent" in the Constitution, regardless of whether it works to his favor or not
- until then, indicate he is continuing his campaign "in good faith" that as Obama was vetted, seated, and served in office under similar circumstances, so to would he be found eligible
It's that simple. Conservative birthers get what they want -- a day in court -- and nearly all will stand down. Liberal birthers now have pause to consider the ramifications of Obama being found ineligible ex post facto, and some will stand down, because whatever penalty they demand applied to Cruz ex post facto will be applied to Obama ex post facto. And the Court receives the cover it needs to continue ducking the issue until a formal request for clarification arrives. It's a political victory and a strategy that will significantly improve Cruz's chances of getting the nod.