Executive Power

Ted Cruz: Democratic Abuses of Executive Power Should Be a Bipartisan Concern

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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.