us-constitution

As an open and vocal supporter of  Sen. Ted Cruz (R-TX)'s presidential campaign, I find that those not yet committed to Cruz tend to more frequently ask me two specific questions than they do any others.

The first question concerns general election electability: "How can Sen. Ted Cruz (R-TX), Tea Party conservative purist, possibly win a general election?"  The electability debate has truthfully been analyzed to death elsewhere, and I do not intend to address it here.  For now, suffice it to say that I would never support Cruz if I did not find him completely capable of soundly defeating Hillary Clinton in a general election—and, furthermore, that for various reasons I find Cruz's chances of defeating Clinton in a general to be virtually indistinguishable from Sen. Marco Rubio (R-FL)'s chances of doing so.

The second question is, I think, the more thought-provoking one, and it goes something like this: "How can a President Sen. Ted Cruz (R-TX), anti-establishment Tea Party icon, he who called his own party's Senate Majority Leader a 'liar' on the floor of the U.S. Senate, possibly work with Congress to advance his substantive policy agenda?"  This is an entirely fair question to ask.  With the exception of Sen. Mike Lee (R-UT), whom in the aftermath of the 2013 shutdown I nonetheless believe has conscientiously strived to emerge as more than a mere "Robin" to Cruz's "Batman," Cruz has very few allies in the Senate.  He does have a devoted cadre of fellow rabble-rousers in the House, but these are largely limited to immigration hardliners and House Freedom Caucus types.

I get asked this second question frequently enough that I wanted to write a post on how I usually go about answering it.  There are two key points I usually raise.

Firstly, I think it is important to push back upon—as a matter of conservative first principles—a core embedded assumption in the very question.  The assumption is that disparate legislators sitting around a proverbial campfire, holding hands, and singing kumbaya—in other words, "compromise"—is necessarily net-beneficial to the country.  This is hogwash.  While "compromise" is not always a dirty word insofar as one can effectively use the bully pulpit as effectively as Reagan did in leading to bipartisan accomplishments like the Tax Reform Act of 1986, former Indiana congressman and Club for Growth President Chris Chocola was surely correct when he opined in 2012 that, "compromise in Washington over the past 20 years usually means more borrowing from our grandchildren and increasing the likelihood that America will end up like just another bankrupt European nation."  We saw this most recently in the awful year-end omnibus, and Western Connecticut State University's Professor Kevin Gutzman said it best in a recent Facebook post:

Asked by Jake Tapper how he would respond to conservatives' criticisms of Congress's latest spending binge, Senate Majority Leader Sen. Mitch McConnell (R-KY), said that Republicans wanted more military spending, Democrats wanted more domestic spending, and so Republicans had to agree to spend more on both military and domestic programs.

I've been saying for years that this is how it works.  The only losers are posterity.  Who cares about them?  "In the long run, we'll all be dead."

I have watched the aforementioned CNN "State of the Union" interview that Jake Tapper conducted of Mitch McConnell, and Professor Gutzman's take is indeed precisely what McConnell said.  This perfectly encapsulates the corrupt nature of the #WashingtonCartel that Cruz so often rails against on the stump, and exposes for everyone to see what Washington "compromise" so often results in.  The intrinsic nature of conservatism is indeed to be skeptical of self-interested actors wielding the levers of power, and I think it is fair to opine that well over half of the prospective legislation that has historically emerged from Congress is not worth enacting as law.  If I had to crudely peg a number on it, I'd conservatively guess that at least 70% of prospective congressional legislation is historically worth vetoing.  It is thus one of my first principle beliefs that blocking bad legislation is just as if not more important than passing good legislation.  And no President would I more entrust to veto bad legislation—legislation that grows the Leviathan, that rewards K Street/Beltway cronyism, that perverts economic incentives and results in moral hazard—than I would President Sen. Ted Cruz (R-TX).

The upshot here is that the additional marginal benefit of a President Cruz's prophylactic veto pen outweighs any hypothetical additional marginal cost associated with the perhaps very slightly greater likelihood of a Republican-controlled Congress's* obstinacy in foiling a Cruz Administration substantive agenda than its obstinacy in foiling, e.g., a Rubio Administration substantive agenda.  To the extent a new Republican-controlled Senate might need to eviscerate the legislative filibuster in a Cruz Administration, moreover, I think it should seriously consider doing so for a very simple reason that relates to the second point I now raise in answering the underlying question at-hand.

The second main reason not to be additionally afraid, on the margin, of the bogeyman of "gridlock" during a Cruz Administration is that I sincerely believe a President Cruz would do more than would any other Republican President to properly recalibrate the separation of powers between the Congress and the Executive Branch to their original** conceived positions.  Cruz's entire life has been defined by an unusual intimacy with the U.S. Constitution.  In high school, he famously memorized the Constitution in shortened mnemonic form.  At Princeton, Cruz—under the tutelage of arguably the country's singularly most influential conservative intellectual, Robert P. George—wrote his senior thesis on the Ninth and Tenth Amendments.  At Harvard Law School, Cruz served on three different legal journals and left professors "in awe of his intellect."  He became the first Hispanic to serve as a clerk to the Chief Justice of the U.S. Supreme Court.  He was so precocious as an appellate litigator that, in 2003, then-Texas Attorney General Greg Abbott decided to expand the scope of the Texas Solicitor General's office to something resembling its current national prominence, in order to better utilize the lawyering talents of then-Texas Solicitor General Ted Cruz and advance national conservative causes.  As Texas Solicitor General, Cruz was deeply involved in such landmark U.S. Supreme Court outcomes as the successful defense of the Texas State Capitol grounds' Ten Commandments display in Van Orden v. Perry (2005), the successful defense of Texas's sovereign right to execute an alien rapist/murderer in Medellin v. Texas (2008), and the long-overdue proclamation that the Second Amendment actually means what it says in D.C. v. Heller*** (2008).

Suffice it to say that Cruz is a constitutionalist of the highest order; he is likely amongst the handful of most ardently pro-Constitution presidential candidates (indeed, scholars) since, well, James Madison himself.  Thus, there is no doubt in my mind that Cruz fervently opposes the past century's consolidation of "rule-making"/quasi-legislative power in the hands of the unaccountable Executive Branch bureaucracy, and the concomitant vitiation of law-making power away from a supine Congress.  In an excellent July article—well worth reading in full—in The Weekly Standard on Justice Clarence Thomas's jurisprudence, RedState's own Dan McLaughlin wrote about Thomas's recent opinion concurring in the judgment in Perez v. Mortgage Bankers Association (2015):

Thomas again delved deeply into the Founding-era documents and contrasted the Framers’ view of judicial review with the tendency of courts to defer to agencies’ interpretation:

This accumulation of governmental powers allows agencies to change the meaning of regulations at their discretion and without any advance notice to the parties. .  .  . To regulated parties, the new interpretation might as well be a new regulation. .  .  . Today .  .  . formal rulemaking is the Yeti of administrative law. There are isolated sightings of it in the ratemaking context, but elsewhere it proves elusive.

Thomas lambasted the Court’s frequent invocation of administrative agency expertise, which he traced to Woodrow Wilson and the progressive era’s “move from the individualism that had long characterized American society to the concept of a society organized for collective action” that “reflected a deep disdain for the theory of popular sovereignty.”  Thomas quoted Wilson on democracy:

In President Wilson’s view, public criticism would be beneficial in the formation of overall policy, but “a clumsy nuisance” in the daily life of Government—“a rustic handling delicate machinery.” .  .  . Reflecting this belief that bureaucrats might more effectively govern the country than the American people, the progressives ushered in significant expansions of the administrative state.

This lamentation of the demise of constitutional law's so-called "non-delegation doctrine" is commonly held orthodoxy in contemporary American conservatism.  Indeed, Nebraska Sen. Ben Sasse (R-NE), in his recent maiden speech on the floor of the U.S. Senate, decried the ever-increasingly self-aggrandizing nature of the administrative state but memorably concluded that "this kind of executive overreach came about because of a great deal of symbiotic legislative under reach."  (Emphasis in original transcript.)  In other words, when Congress lazily yields power, a voracious Executive Branch is always eager to fill the void.

Cruz knows and appreciates this.  Quite simply put, I trust a President Cruz far more than I would trust a President Rubio, Trump, or anyone else to meaningfully seek to recalibrate this proper balance between the two political branches to something more closely approximating what the Framers had in mind well before Woodrow Wilson and Franklin Roosevelt began their elitist, bureaucratic, central planning-infused assault on American republicanism.  I trust Cruz more than I would trust any other Republican President to meaningfully work to re-empower Congress's exclusive legislative prerogative and quash imperial Executive lawlessness—including, if truly necessary, possibly eliminating the Senate's legislative filibuster and thus removing a potential perverse incentive for a President to merely use his "pen and a phone" to decree unilateral ukases.  Cruz, the lifelong constitutionalist intimately familiar with Founding-era American political theory, should be uniquely entrusted with eschewing Executive Branch unilateralism and engaging in this much needed attempted restoration of the non-delegation doctrine more than might be any other Republican presidential candidate.  And indeed, he has repeatedly sounded the alarm of a runaway administrative state since joining the Senate.  Most recently, he has explicitly endorsed—by means of writing the foreword to—my friend David Bernstein's book on the need to restore executive power to its proper constitutional constraints.

To finish the thought, it is logical that, should a President Cruz begin to meaningfully engage in this pro-Congress restoration of the legislative prerogative and concomitantly work to earnestly shrink the size and scope of the unaccountable administrative state Leviathan, Congress would respond positively to such an explicit olive branch by a Cruz White House.  Congress should gladly welcome the Cruz Administration's selfless undermining of its own (century-plus****) extra-constitutional institutional entrenchment, and respond favorably to this goodwill by working more closely with President Cruz to advance his substantive agenda the way Cruz will have recognized it must be done: via the Constitution's prescribed formal presentment and enactment procedure—otherwise known as "Schoolhouse Rock"-style passing a bill and signing it into law.

Certainly, these are only only two possible ways that a Cruz supporter may attempt to assuage a non-Cruz supporter's perceived doubts as to a President Cruz's marginally diminished likelihood of advancing his substantive agenda through Congress.  And, of course, plenty of this is speculative.  But it has the distinct advantage of making a lot of sense.

 

* I am going to assume, both for the sake of argument and in light of how far irredeemably Left the Democratic Party has shifted in the past fifteen years, that a President Cruz would spend more time vetoing bad legislation from a Democratic-controlled Congress than he would spend time working to enact a bipartisan governing agenda.

** That is, to say, pre-Progressive Era—and pre-Woodrow Wilson, in particular.

*** Then-Solicitor General Cruz wrote the U.S. Supreme Court amicus brief on behalf of 31 pro-gun rights States.  It did not take very long, following his January 2013 arrival in the U.S. Senate, for Cruz's knowledge of the Constitution and strongly pro-gun rights sentiments to cause rifts with some Democratic colleagues.

**** Again, going back to President Wilson.