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Jack L.B. Gohn: The weird jurisprudence and constitutionalism of Ted Cruz

I write about policy in this column, not politics, but sometimes a focus on policy inescapably draws one’s attention to politicians. This is one of those times. Nearly 16 months before the next election (thanks to our agonizingly long presidential campaigns), one of the candidates, Sen. Ted Cruz, R-Texas, has sought to distinguish himself by with his arguments about jurisprudence and constitutionalism.

On paper, Cruz is eminently qualified to talk jurisprudence and constitutional policy. He’s a Harvard Law grad whose professors were reportedly dazzled by his intellect, a law review editor, a former U.S. Supreme Court clerk, and a former Texas solicitor general. One would expect something substantial from him, whether one would agree or disagree with what he says.

In reality, though, Cruz has proven in recent months to be an unceasing font of balderdash.

What’s a ‘State’?

Let’s start with Cruz’s commentary on the Supreme Court’s recent ruling in King v. Burwell. The petitioners there attempted to kneecap Obamacare by persuading the court that the phrase “an Exchange established by the State” in the enabling legislation referred only to health insurance exchanges established by state governments. Had that interpretation prevailed, taxpayers in any state that had failed to establish its own exchange and left the exchange establishment process to the federal government would not receive the tax credits Congress had clearly intended for them. Of course, the United States is, in common parlance, a “State” as well. (State Department, etc.) So the phrase was obviously ambiguous.

The Supreme Court, doing what courts for hundreds of years have done when examining ambiguous statutes, construed the ambiguity. The only suspense was whether the court might go along with Obamacare’s foes and declare a “gotcha” and contravene congressional intent merely because of an ambiguous turn of phrase.

When the court refused to do that, Cruz thundered: “This must stop. Liberty is in the balance.” He characterized this business-as-usual decision as “redefining the meaning of common words.”

Fundamental right

Of course, Cruz was far more upset at the Supreme Court’s action in the Obergefell case, which held that states must license and recognize same-sex marriages. The court’s action there, Cruz said, “required all Americans … to accept the redefinition of an institution ordained by God and long predating the formation of the court.” Even setting aside the hyperbole, the statement is inaccurate. The court did not “require all Americans” to “accept” same-sex unions; it just blocked state governments from preventing or disregarding them.

As discussed in last month’s column, the Obergefell court recognized it was overriding popular will in many instances and the legislative enactments of many states, but held that as it was dealing with “fundamental rights,” it was within its proper province in doing so. It is the very definition of fundamental rights that they trump electoral or legislative action.

I have not found any writing of Cruz’s in which he acknowledges the fundamental rights doctrine, or in which he specifically responds to Justice Anthony M. Kennedy’s analysis applying that doctrine to same-sex marriage. But he is nonetheless incensed on behalf of the state legislatures whose enactments the Obergefell court invalidated.

Even before the Obergefell ruling, Cruz was trying to derail the court’s action on same-sex marriage. Back in April, he had proposed a “Protect Marriage from the Courts Act” that would have deprived federal courts of the jurisdiction to consider constitutional challenges to any state law defining marriage as between one man and one woman. By cutting off access to federal courts that might say otherwise, this legislation in effect would have rendered congressional protection for state laws protecting “traditional marriage” superior to any Supreme Court ruling, in effect substituting the legislative branch for the judicial branch, at least for this purpose. In this area, it would have made the Supreme Court unable to protect constitutional rights or direct the development of constitutional doctrine. Truly wacky stuff.

End-run around Constitution

After Burwell and Obergefell, Cruz went further, proposing retention elections for Supreme Court justices. He wrote that the court was unaccountable, that the existing constitutional remedy of impeachment was not a workable way to enforce accountability, and that therefore the Constitution should be amended to make justices recallable by retention elections.

That proposal would be an end-run around the entire constitutional order. Federal judges sit “during good behavior,” i.e. for life, absent serious misconduct. The trouble with allowing popular will to shorten that tenure is that this would render the court, like the legislative and the executive, a political branch. As Obergefell demonstrated, we need a branch of government that is not politically accountable; it is needed precisely to protect us from the anti-minority policies Ted Cruz’s ilk always seem to push.

It is no answer to point out, as Cruz has done, that many states elect their appellate judges without ill effect. As Cruz should know, popular say in the tenure of appellate judges is not a universal success. But even where electoral say on appellate judges works better, it works in large measure because the U.S. Supreme Court still holds the whip-hand over state courts when it comes to interpretation of the all-important federal Constitution. State courts must bow to that interpretation, and it serves as the primary safeguard of minority rights in this land.

It is not merely the bizarre quality of Cruz’s views; it is the vehemence with which he expresses them. Thus, President Obama’s recently-announced EPA regulations on power generation are not merely a “lawless and radical attempt to destabilize the nation’s energy system” but also “flatly unconstitutional.” No doubt troubles Cruz’s outrage.

The fact that we as a nation have never lived in a world where courts didn’t construe statutory ambiguities, where legislative fiat didn’t yield to fundamental rights, where Supreme Court justices weren’t protected from political repercussions, or where the government couldn’t address national emergencies like global warming, is of no moment. Cruz knows all.

Jack L.B. Gohn is a partner with Gohn, Hankey, Stichel and Berlage LLP. The views expressed here are solely his own. See a longer version, with links to his authorities, at