by Ted Cruz
In the interim, the roar of criticism of the administration’s punitive air travel ban grew louder. New York’s then-mayor Michael Bloomberg, with whom I disagree on many other issues, took the bold step of traveling to London to take a commercial flight to Tel Aviv, in order to demonstrate how safe it was.
And, the heat and light was so intense, within thirty-six hours, the FAA had no choice but to publicly lift the ban and allow flights to resume.
Standing for Israel is important, and it is sometimes controversial. In the summer of 2014 my office was approached by a new group called “In Defense of Christians,” the ostensible purpose of which was to bring together the various Christian sects of the region, who had a history of internal squabbling, so they could present a united front at a conference in Washington in September. The Syrian civil war had been raging for three years, and as the civil war dragged on, jihadists from Al Qaeda, Jabhat al-Nusra, and a new group calling itself the Islamic State in Iraq and Syria (ISIS) attacked Christians with impunity, torturing and murdering them in a systematic campaign of genocide. Our office made it be known that we were interested in helping any way we could. “IDC” invited me to keynote their gala dinner, and because a number of people I hold in the highest respect including my undergraduate thesis advisor Professor Robby George of Princeton were participating, we agreed.
The event seemed straightforward until the day before the dinner, when news stories broke that suggested the funding for the conference had ties to Hezbollah—and so Iran—and that participants had been requested not to talk about Israel or persecution of the Jews in their remarks. As controversial as the event might be, cancelling just didn’t sit right with me. For starters, the issue was a critical one, and there weren’t enough loud voices speaking up for these innocent Christians who were being crucified and beheaded by Islamic radicals. In addition, I had said I would go and I hated going back on my word. I didn’t want to cede the discussion to the radicals. I decided I would go, give my speech, but speak the whole truth.
I gathered my thoughts as we drove up to the Omni Shoreham Hotel. My prepared remarks emphasized the importance of standing for all persecuted religious minorities in the Middle East—Christians, Jews and moderate Muslims—and not making a deal with devils such as Hamas, Hezbollah or Assad who cannot be trusted. This line of reasoning was fine as far as it went, but the minute I stepped into that banquet room I knew it wasn’t going to fly. There was an unsettled feel, and a lot of security. We were taken around the side to wait backstage.
When I stepped onstage, at first the welcome was warm. But as I began my remarks, and made a mention of the Jews, and then Israel, a muttering started that quickly became hissing and booing. To be fair the majority of the audience was either listening respectfully or even applauding, but the minority was much more vocal. So I told them Christians in the Middle East had had no greater friend than Israel, which made them even angrier.
I set my prepared remarks aside and spoke from the heart, “Those who hate Israel hate America. And those who hate Jews hate Christians.” The boos grew louder. “If those in this room will not recognize that, then my heart weeps. If you hate the Jewish people, you are not reflecting the teachings of Christ. And the very same people who persecute and murder Christians right now, who crucify Christians, who behead children, are the very same people who target Jews for their faith, for the same reason.”
The shouting was so loud the head of the conference came on stage to ask them to give me a fair hearing. They would not. So I simply said, “If you will not stand with Israel, then I will not stand with you. God bless you, good night,” and walked off.
Surrounded by burly security guards and police, our party was escorted through the kitchen. When we got into the hotel lobby we were pursued by various attendees, some expressing support, others more aggressive outrage. The IDC incident hit the press shortly thereafter, with some hailing me as a hero, and others vilifying me as a self-promoting opportunist who had planned the whole thing.
I was in fact neither. As sad as I was that the purported message of the conference—to stand together in defense of Christians—had been undermined, I had no regrets. All I did was tell the truth. You can’t beat hate with hate. And the Christians of the Middle East won’t be helped if we turn our back on a true friend and try to make common cause with an enemy that, if it succeeds in destroying the Jews, will not stop there.
We can continue to work to mitigate the damage for the next two years. But ultimately, we need a fundamentally new direction for American foreign policy.
The Obama administration’s efforts to forge “a new beginning” with Iran might well mean that one of the most determined enemies of America will possess a nuclear weapon by the end of Obama’s term. Here’s the grim assessment of Ali Younesi, senior advisor to President Rouhani and formerly Iran’s intelligence minister:
Obama is the weakest of U.S. presidents; he had humiliating defeats in the region. Under him the Islamic awakening happened. . . . Americans witnessed their greatest defeats in Obama’s era: Terrorism expanded, the U.S. had huge defeats under Obama and that is why they want to compromise with Iran.
When President Obama leaves the White House, he will leave behind a legacy of ashes in international affairs. The vacuum of leadership created by Barack Obama and Hillary Clinton will take a generation to restore by reversing the effects of massive defense budget cuts and reinstilling confidence in our friends and allies that America foreign policy is once again guided by moral clarity.
It is not impossible, however. And in fact there is a parallel. When Jimmy Carter left the White House in 1981, America was in a similar state of paralysis, incoherence, and crisis. Iran was an ascendant power, similarly mocking the perception of American weakness. The Russians had invaded a neighbor—Afghanistan—and threatened others in their orbit. That all changed when a confident president, Ronald Reagan, willing to exert American leadership and defend American values, took the reins.
Likewise, I believe with true leadership—and a president unafraid to face down tyranny and call evil by its name—we can see the restoration of America to its rightful place as the leader of the free world.
As abysmal as Obama’s record abroad has been, the damage he has done to our Constitution is just as devastating.
In the history of our republic, we’ve never seen a president so willing to ignore the law, to refuse to enforce the law, to defy the law, or to claim the authority to outright change the law as Barack Obama. As liberal law professor—and former Obama supporter—Jonathan Turley has said, “What’s emerging is an imperial presidency, an über-presidency as I’ve called it, where the president can act unilaterally.”2
President Obama seems uncomfortable with the rule of law as laid out in our Constitution. He fundamentally rejects two of its most important principles: that the executive is required to enforce all the laws, even those he dislikes; and that there are limits on the power of the federal government.
Our Constitution states that the chief executive may not negate congressional acts by picking and choosing which laws to enforce. Instead, it mandates that the president “shall take care that the laws be faithfully executed.” The Founders understood that representative government is only representative if the executive enforces the laws passed by the people’s representatives.
Our Constitution also enumerates the federal government’s powers, which means that federal authority is limited to those relatively few powers listed by the Framers. The Tenth Amendment makes clear that all unenumerated powers belong “to the States . . . or to the people.” And the other amendments in the Bill of Rights provide express protection against exercises of federal power that infringe on rights like the right to freedom of speech, the right to religious liberty, and the right to private property.
Although there are many elements of the Obama presidency that are troubling—the explosion of a crippling debt; the job-crushing effect of higher taxes and new regulations; the
governmental takeover of our health care system—nothing about it has been more damaging than the president’s repeated acts of lawlessness and his refusal to acknowledge long-respected limits on the power of the federal government.3 It is a betrayal of our constitutional system.
As the ranking member of the Senate Judiciary Committee’s Constitution Subcommittee, I released a series of reports chronicling seventy-six acts of lawlessness by the administration.
One of the most egregious examples of lawlessness is the president’s nonenforcement of his signature legislative accomplishment: Obamacare. President Obama and the Democrats have repeated the mantra, “Obamacare is the law of the land.”4 Yet members of his administration have consistently been unwilling to abide by the plain text of the law they wrote with their Democratic allies in Congress.
For example, Obamacare’s employer mandate requires employers with fifty or more full-time employees to pay a tax if they do not provide health insurance for their workers. Just as many individuals must obtain insurance, many businesses must provide insurance. This puts an unbearable burden on many entrepreneurs, disincentivizes job creation, and encourages employers to reduce the number of full-time employees.
The employer mandate was supposed to kick in on January 1, 2014, but in late 2013, President Obama decided to treat his buddies in big business differently than individual citizens subject to the individual mandate. He granted those businesses a one-year waiver from the employer mandate. Then, in February 2014, he extended many of the waivers through 2016—two years later than individuals were forced to comply with the law.
The president did the same thing for members of Congress. The text of Obamacare says that members of Congress will be on the exchanges, without subsidies, just like millions of Americans. Harry Reid and the congressional Democrats were horrified at that prospect, and they asked the president for relief. And so, contrary to law, the administration issued a ruling exempting members of Congress (but not ordinary Americans) from the explicit requirements of Obamacare.
Some people might wonder why an opponent of Obamacare like me is bothered by the president’s failure to enforce a law I dislike. To be sure, I believe Obamacare is bad, and I’m fighting for Congress to repeal it altogether. But regardless of whether a law is good or bad, a president’s unilateral revision of it is illegal—and dangerous to the rule of law.
The separation of powers requires the president to “take care” that all the laws passed by Congress are executed—the good, the bad, and the ugly. Obama’s delaying decree is just as lawless as if a Republican president decreed a flat tax (good underlying policy) by unilateral edict.
Obamacare is far from the only law the president refuses to enforce. Two weeks after the 2014 midterm elections, in which President Obama’s policies and party suffered a historic defeat and Republicans won both Houses of Congress, our forty-fourth president strode to a podium in the White House to make a stunning announcement: He would no longer enforce the immigration laws of the United States, and would in effect grant some four million illegal immigrants in the United States a blanket amnesty.
In 2011, President Obama had disclaimed any power to grant amnesty by executive fiat, telling the National Council of La Raza that the “idea of doing things on my own is very tempting . . . but that’s not how our system works. That’s not how our democracy functions.”5 As he put it, “I’m not the emperor of the United States.”6
But a year later, in 2012, the president showed that his real understanding of “how our democracy functions” is not very democratic at all. He created an application process to grant amnesty to those who crossed the border illegally as children. This was simply an executive decree of legislation that Congress had already rejected.
The consequences of Obama’s illegal amnesty became plain in 2013 and 2014, when we saw the numbers of unaccompanied minors crossing the border skyrocket. In 2011, roughly 6,000 unaccompanied children crossed the border. By 2014, that number had risen to 90,000. And by 2015 it is estimated to rise to 145,000. This was the predictable consequence: When you grant amnesty to those who come here illegally as children, you create an enormous incentive for more and more children to come illegally. And those kids are not being transported by well-meaning social workers. They are being trafficked by transnational criminal cartels. Subjecting tens of thousands of children to physical and sexual abuse, to victimization by vicious so-called coyotes, is the opposite of compassionate. And it is contrary to law.
And, in 2014, President Obama expanded amnesty even further, to an additional four million people, in direct defiance of the results at the polls in November 2014. As Obama rightly noted, his “policies [were] on the ballot” all across the country. The American people overwhelmingly voted against amnesty, and the president angrily decreed it anyway. The president’s amnesty decree was lawless, and it was consistent with his politicizing immigration policy. I helped lead the fight against the “Gang of 8” amnesty bill because it would have made the problem worse. But the way to actually pass immigration reform is to focus on areas of bipartisan agreement: secure the border, now, and improve and streamline legal immigration. Indeed, there is no stronger advocate of legal immigration in the Senate than I am. But rule of law matters also.
The president also unilaterally repealed a key provision in the welfare-to-work reform that President Clinton signed into law in 1996. The premise of welfare reform in the 1990s was that those who benefit from our social safety net should be required to prepare for work, look for work, or work. But in 2012, the Obama administration announced that it would issue waivers of this work requirement. The waivers had no basis in law, but that did not matter. It was yet another illustration of President Obama’s philosophy, which is best summed up in one of his favorite, repeated threats: “If Congress won’t act, I will.”7
As liberal law professor Turley has observed, “President Obama [has become] the president [that] Richard Nixon always wanted to be.”
Fortunately, we still have at least some checks on the president’s power. Indeed, the Supreme Court has unanimously rebuffed the president’s vision of government power—not once, not twice, but more than twenty separate times;8 however, the unprecedented volume of unanimous repudiations of the administration—by a Court that includes four liberals, two of them appointed by Obama himself—underscores what a radical vision of federal power the president is trying to assert.
A review of the aggressive assertions of government power made by the Obama administration is nothing short of breathtaking.
If President Obama had his way, the government could secretly put a GPS tracking device on the car of any American, without cause or suspicion of a crime. The FBI could literally set up a room straight out of a science fiction film, where a giant screen shows moving dots, and a hub of computers allows federal agents to know the location of every car of every family in the United States. If that sounds extreme, well, the administration defended precisely this interpretation of the Fourth Amendment’s privacy guarantees before the Supreme Court in United States v. Jones. It lost unanimously.
If President Obama had his way, the police could not only follow your movements; they could also search through the smartphone of anyone arrested, even if there is no reason to suspect that the phone contains evidence of a crime. In other words, if you are carrying a smartphone when you are arrested for jaywalking, an agent of the state can read every email on your phone, look at every picture on it, and listen to every voice mail on it. (They can also check the numbers of every person you’ve called in your “recent calls”—although the NSA may already have that list.) The administration defended this extreme interpretation of the Fourth Amendment before the Supreme Court in Riley v. California. It lost unanimously.9
If President Obama had his way, Congress could pass laws that block the ability of houses of worship to choose their own ministers. If Congress wanted to force an Orthodox Jewish synagogue or a Catholic church to allow women to become rabbis or p
riests, no “ministerial exception” inherent in the Free Exercise of Religion Clause would protect religious institutions. The administration defended this radical interpretation of the First Amendment’s freedom of religion in Hosanna-Tabor v. EEOC. It lost unanimously.
In Hosanna-Tabor, the Obama Justice Department argued that the First Amendment was irrelevant to the government’s assertion of power over the church. Justice Elena Kagan—who was nominated to the Court by President Obama—remarked from the bench that it was “amazing” that the administration believed that “neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.”
If President Obama had his way, the president could entirely evade the Constitution’s requirement of senatorial “advice and consent” for nominations. The issue arose when Obama wanted to appoint nominees without sufficient support in the Senate for confirmation. Instead of finding new nominees with broader support, Obama claimed that the president has the power to unilaterally declare the Senate to be in recess—even if the Senate disagrees. Then, having declared a recess, Obama made appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau by invoking his power to make temporary appointments during a Senate recess. Before the Supreme Court, the administration defended this unprecedented interpretation of the Recess Appointments Clause in NLRB v. Noel Canning. It lost unanimously.
Taken together, these cases illustrate a startling misunderstanding of privacy, religious freedom, federalism, and executive power. But perhaps no case exemplifies Barack Obama’s unlimited vision of the government’s power over its citizens better than the case of Sackett v. EPA.