Ted Cruz is the new tea party backed Senator from Texas. He is a lawyer with a strict constructionist view. Unfortunately, he appears to less strict about telling the truth.
He recently released a white paper entitled, “The Legal Limit: The Obama Administration’s Attempts to Expand Federal Power”
From the intro to that document.
The Obama Administration, through its Department of Justice, has repeatedly advocated a radical theory of sweeping federal power. The Administration’s view of federal power is so extreme that, since January 2012, the U.S. Supreme Court has unanimously rejected DOJ’s arguments for more federal power six times.
Notably, four Justices who were nominated by Democratic presidents denied the Obama Administration’s overreaches— President Obama picked two of them himself. As Ilya Shapiro noted in The Wall Street Journal on June 5, 2012, “When the administration can’t get even a single one of the liberal justices to agree with it in these unrelated areas of law, that’s a sign there’s something wrong its constitutional vision.”
You’d think that if the Supreme Court has been regularly rejecting the Obama administration over the past six months that it would be front page news. When you search this particular release, however, the only “news” sites that are reporting on this white paper are the same sources that questioned Obama’s birth, claimed he is a socialist, and suggest that Obama and UN have a plan to take over the country.
We’ll get into the why at the end, but let’s look at the how.
The quote that he provided from a year old Wall Street Journal article tends to lend credence to his assertion that the administration through the Department of Justice is engaged in a reckless power grab that even his own supreme court appointees oppose.
It turns out that this wasn’t a news article. It was an opinion piece written by the head of the libertarian Cato Institute in the days leading up to the Supreme Court ruling on Obamacare. That article referenced only three of the six cases that the Cruz listed. It also covered other cases which were subsequently decided in the governments favor (Obamacare, voter ID, and immigration) as further evidence of potential government over reach.
Media Matters responded the WSJ op-ed next day (6/8/2012).
In a Wall Street Journal op-ed, the Cato Institute’s Ilya Shapiro uses three recent unanimous Supreme Court decisions to attack the Obama Administration for “increasingly extreme claims on behalf of unlimited federal power.” There’s just one problem with this analysis: in each case, the Obama administration was defending government actions that took place during the Bush administration. The Solicitor General, who is the government’s top lawyer, has, in almost all cases, an obligation to defend government actions and federal laws, including those actions undertaken by previous administrations. That is what the Obama administration was doing in the three cases Shapiro highlights. But if Shapiro noted that fact, it would undermine his narrative about the administration’s supposed “constitutional vision.”
Here are the details on the cases cited in the WSJ opinion piece and replicated in the Cruz white paper.
- United States v. Jones – Unanimous decision saying that a GPS device does constitute a search, but did not rule on whether it was a violation of the 4th Amendment prohibiting unreasonable searches. Instead the court issued a very narrow 5-4 decision that the FBI action of planting a GPS device on a car represents government trespass on private property which violates an individuals “reasonable expectation of privacy”. The original incident with the FBI happened in 2004 during an investigation launched by the Bush administration.
- Sackett v. EPA the court ruled that the EPA has to provide an appeals process for rulings under the Clean Water Act. The Sackett’s complained when the Bush administration issued an order to stop building a house and filling in wetlands that were covered under the Clean Water act. The Clean Water act was originally signed by Richard Nixon in 1972.
- Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC was the case where a teacher at a private religious school fell ill and was fired when she returned. The court ruled that that because she also taught some religion classes, she could be considered a minister and upheld the firing. The illegal firing action was filed by the EEOC during the Bush administration.
Here are details about the other three examples of Supreme Court rejection that Cruz cited.
- Arizona v. United States – The court UPHELD the federal government’s authority to regulate and enforce immigration laws. The ruling effectively gutted the Arizona immigration law. Obama appointee Elena Kagan recused herself because of her involvement in this case while Solicitor General. The court did uphold one provision of the Arizona immigration law which allows Arizona state police to investigate the immigration status of individuals detained for other reasons, but with the warning that if there was evidence that this was used in a discriminatory way, the courts would strike this provision down too.
- Gabelli v. SEC – The court ruled that when the government is bringing civil actions the statute of limitations clock starts when the illegal behavior begins rather than when it ends. In this case the action did not begin decades ago, as Senator Cruz claimed. The fraud began in 1999 and ended in 2002.
- Arkansas Fish & Game Commission v. United States – this case held that government induced flooding between 1993 and 2000 by the Corp of Engineers constituted “taking” property. The Corp was responding to requests by Arkansas farmers for more irrigation water. That water flooded state timber land during growing season and Arkansas sued for compensation. Bill Clinton was President.
Now let’s compare these facts to the statements made in the Cruz white paper.
- United States v. Jones - “The Supreme Court unanimously overruled DOJ’s Orwellian position— all nine Justices agreed that a search occurs when police attach a GPS to a car and monitor its movements. “ What he doesn’t say is that this “Orwellian position” was authorized by the Bush administration FBI. The Obama DOJ was simply required to defend it. What he also doesn’t say is that while the justices agreed that this was a search, the court DID NOT decide that it was an ILLEGAL search. They could only muster a narrow 5-4 decision that it was a trespass. Clearly NOT the resounding repudiation Cruz claimed.
- Sackett v. EPA – “If DOJ had won its case, the EPA would be able to extort settlements from Americans who don’t have the ability to challenge these orders while they face fines of up to $75,000 per day.Thankfully, the Court stopped DOJ in its tracks.” What he didn’t say is that this overturned a process that has been in place for 40 years and that this particular action against the Sackett’s was taken by the Bush administration not the Obama administration. The Obama DOJ was simply in the position of defending EPA which it is obligated to do. What he also didn’t say is that the court DID NOT rule on the property rights of the Sackett’s. They simply said that the EPA had to provide the Sackett’s the opportunity to appeal the original EPA ruling and remanded the case back to the EPA for an appeal hearing.
- Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC – Cruz claimed this case rejected the Obama administrations attempts to “Interfere with a church’s selection of its own ministers.” What he didn’t say is that this was not brought by the Obama administration. It was brought by the Bush administration. He also misrepresented the court’s decision. It was NOT about how churches select their ministers. It was about who can be CONSIDERED a minister under the law. The court decided that the term “minister” includes any teacher at a religious school who teaches a religion class.
- Arizona v. United States – In the body of his document Cruz says, “Even though the Court did hold that federal law preempted three out of four of Arizona’s immigration laws at issue in the case, no Justice accepted DOJ’s theory that mere federal enforcement priorities — as opposed to federal statutes passed by Congress or regulations enacted by federal agencies after public participation — trumped state law” The summary, however, only says, “Override state law whenever the President desires.” This is just more evidence of Cruz’s hyperbole. The court decision was simple and direct. The federal government has the responsibility to enforce the borders and in this particular area federal law supersedes state law. The court did disagree with some of the arguments that the DOJ made, but the agreed with the others on which they based their decision. This was widely recognized as a victory for the Obama administration, not the defeat that Cruz characterized.
- Gabelli v. SEC – Cruz said that court denied the DOJ the right to, “Dramatically extend statutes of limitations to impose penalties for acts committed decades ago.” This is simply not true. The statute of limitations for the government to take civil action regarding a financial fraud that Gabelli committed beginning in 1999 and ending in 2002 expired in 2004 before the government could take action. They were trying to build a case that they could use a different clock which would have allowed the statute of limitations to be calculated from the end of the offense (2002) rather than the beginning (1999). If the DOJ had prevailed, it would have allowed the case to move forward. How you get from here to “impose penalties for acts committed decades ago”, I can’t figure out.
- Arkansas Fish & Game Commission v. United States – Cruz said that court prevented the administration from gaining the right to, “Destroy private property without paying just compensation.” The truth is that this happened under the Clinton administration. It was a case of greater good. The Army Corp of Engineers decided that providing Arkansas farmers more water to raise their crops was a great good than the known damage the controlled floods caused to timber farms owned by the state of Arkansas. The ONLY thing the court decided was that the “takings” statue of the Fifth Amendment did not exempt the federal government when it came to controlled floods. The court remanded the case to lower courts to decide whether the federal government is actually liable for damage caused by flood control programs and if so that the extent of that damage is.
Hopefully if you’ve made this far down in to this article, you have already discovered why no legit news source even covered this Ted Cruz white paper.
That leaves the question of why a U.S. Senator would so badly warp the truth?
Ted Cruz is a rising star in the Republican Party BECAUSE of his Tea Party views.
He believes that government is the great evil and the Obama administration in particular is the worst example of big government.
This was one of the major Romney campaign positions. Remember “gutting welfare reform”, “send auto jobs to China”, “you didn’t build that”, “dependency”, “amnesty”, “government takeovers”, and “job-killing” attacks directed at the Obama administration during the last election? This is the same stuff.
Fortunately fair minded voters rejected these arguments and rewarded Obama with a second term.
That doesn’t deter ambitious politicians like Ted Cruz from continuing to practice Big Lie politics. It doesn’t matter that the Obama administration had significant Supreme Court wins on Obamacare, immigration, and voting rights.
It doesn’t matter that the current proposed Republican budget includes those same “job killing” taxes Republicans campaigned against.
Cruz is going to continue to twist the facts to support his particular point of view.
That’s what conservatives do.