In today’s Wall Street Journal,
Sen. Ted Cruz (R-Texas)
condemns President Obama’s “persistent pattern of lawlessness,
his willingness to disregard the written law and instead enforce
his own policies via executive fiat.” The piece, which focuses on
three ways in which Obama has flouted the plain language of the
Patient Protection and Affordable Care Act, is mostly on target,
although I
question Cruz’s contention that declining to prosecute
state-licensed marijuana growers and sellers is tantamount to
violating the Controlled Substances Act. The most striking thing
about Cruz’s essay is what he left out.
While Cruz argues (correctly) that the abuse of executive power
“should not be a partisan issue,” he does not cite a single example
involving a Republican president, although he does concede that
“Republican presidents abused their power” and might do so again in
the future. And although there is no shortage of cases
in which Obama has acted lawlessly in the name of national
security, Cruz does not mention any of them, possibly because doing
so would raise the hackles of hawkish Republicans and bring to mind
similar sins by Obama’s Republican predecessor.
One of the earliest and clearest examples of Obama’s lawlessness
stemmed from his determination to bail out the auto industry. But
it was George W. Bush who initiated the illegal use
of money from the Troubled Asset Relief Program to rescue American
car manufacturers from their own mistakes—a policy that Obama
welcomed as a senator and expanded as president. Obama went further
with his high-handed engineering
of the merger between Chrysler and Fiat, a deal that violated
well-established bankruptcy principles.
But bringing that up would remind anyone who was paying attention
that Obama’s abuse of executive power in this area was a logical
extension of Bush’s.
The same could be said of the National Security Agency’s
surveillance programs. After condemning the NSA’s warrantless
wiretapping of Americans’ international communications during the
Bush administration, Obama voted to authorize it, and it continues
to this day. Likewise the NSA’s routine collection of every
American’s phone records, which Obama claims is authorized by the
PATRIOT Act. The main author of the PATRIOT Act disagrees.
Yet Cruz does not mention illegal surveillance as an example of
Obama’s (and Bush’s) excesses.
Nor does Cruz mention Obama’s completely optional yet
congressionally unapproved air
war against Muammar al-Qaddafi’s regime in Libya,
although it is hard to think of a purer example of the president’s
unilateralism. The Constitution gives Congress the power to
declare war, but Obama never sought such a declaration. He
even argued,
against the advice offered by his own Office of Legal
Counsel, that the War Powers Act, which requires congressional
authorization for the continued use of military force without a
declaration of war after 60 days, did not apply, because the bombs
and missiles raining down on Libyan forces did not constitute
“hostilities.” I don’t know where Cruz, who took office last year,
stood on Libya, but many of his fellow Republicans think the
president should have a great deal of discretion in deciding when
and why to use military force. Some of Cruz’s
comments about Syria suggest he may agree.
Cruz even overlooks two executive-power issues related to
national security that he has highlighted in the past. Last year
Cruz challenged the
president’s license to kill anyone he suspects of involvement in
terrorism, and he voted
against the National Defense Authorization Act because he
was “deeply concerned that Congress still has not prohibited
President Obama’s ability to indefinitely detain U.S. citizens
arrested on American soil without trial or due process.” But
imprisoning and killing people at will somehow do
not make Cruz’s list of Obama’s most troubling
power grabs, possibly because so many of his fellow Republicans do
not see anything wrong with those policies.
“In the nation’s history,” says the subhead above Cruz’s
op-ed piece, “there is simply no precedent for an American
president so wantonly ignoring federal law.” Although Cruz may not
have written that, he did not challenge the claim when CNN’s Jake
Tapper read it back to him last night. Instead he tried to make the
case that Obama has indeed been especially lawless. In the
Journal essay, he suggests that Democrats (including
journalists covering the White House) have been less keen to
challenge Obama’s abuses than Republicans were to challenge
presidents of their party:
In the past, when Republican presidents abused their power, many
Republicans—and the press—rightly called them to account. Today
many in Congress—and the press—have chosen to give President Obama
a pass on his pattern of lawlessness, perhaps letting partisan
loyalty to the man supersede their fidelity to the law.
From the perspective of someone who is neither a Democrat
nor a Republican, both the abuse of executive power and the
willingness to overlook it when a member of your party occupies the
White House seem like bipartisan tendencies. Cruz
would be much more credible on this issue if he forthrightly
admitted that instead of insisting that the other team is
worse.
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