Seperation of PowersIn his remarks at the Texas Public Policy Foundation’s annual Policy Orientation conference last Friday, Senator Ted Cruz (R-TX) made headlines by calling the Obama administration “lawless”. The headline writers and those who draw conclusions based on the headline without reading or watching Cruz’ remarks totally miss the point.

The subject of Cruz’ remarks was not President Obama’s lawlessness. Rather, Cruz used the president’s well known disregard for the law and for Congress to make a larger philosophical point that transcends partisan politics and even the president himself. The subject of Senator Cruz’ remarks was the rule of law and his remarks revolved around the age old question of whether we are to be a nation of laws or a nation of men.

Our nation’s founders wisely understood that a nation of men can never be a nation of liberty, for a nation of men must necessarily bend to the ever changing whims of its leaders. Our founders knew from personal experience as British subjects and from careful study of history that such nations trend toward tyranny, despotism, cronyism, and the petty use of authority to crush political opposition. This is the story of most nations throughout history.

What was and continues to be so remarkable about the American Revolution is that in the aftermath of war, with liberty secured for the inhabitants of a new nation, the founders went out of their way to set up a system that until now has done a pretty good job of preventing ours from becoming a nation of men. They created a nation of laws where lawmakers – elected by the people – dedicated a limited portion of their lives to public service and then returned to live as private citizens under the laws they created.

The founders invented a system of government with checks and balances so that no one branch could govern alone and to prevent any one man from consolidating the reins of power and so shape the nation in his own image.

Since the 1789, 43 men have served as president and more than 12,000 have served in the United States Congress. Most of them, including most of the presidents, are by now obscure figures whose memory is mostly lost to history. Most Americans can’t name all the presidents or what policies they advanced, wouldn’t be able to pick most currently serving members of Congress (let alone their 12,000 predecessors) out of a lineup, and can’t name their own slate of federal, state, county, and local elected officials. This is by design. Our laws are more important than our lawmakers.

Our founders understood that by creating a nation of laws they were setting up institutions to guard the flame of liberty and promote justice for all. If we don’t like our laws we can demand that our lawmakers change them. If we don’t like our lawmakers we can throw the bums out! Even the highest office holders in the land are subject to the law and often – but not always – when they are caught violating it they leave office in disgrace and sometimes end up in the prisons they helped build. When lawmakers flout the law with impunity, the light of liberty is diminished.

Duly enacted law is the cornerstone of long term structural, political, and institutional stability in the United States. It is the reason we have prospered and become a powerful nation uniquely positioned in the world. It is the reason we have not been governed by a series of madman tyrants like so many other nations around the globe, including many in our own hemisphere. It is the reason we are able to work through our own turmoil without foreign intervention and emerge stronger for having done it.

So long as the law of the land continues to be based on a sometimes messy and often lengthy consensus building process rather than on the whim or political necessity of a temporary office holder, our nation will continue to be strong and we will continue to prosper even in times of deep partisan division. For the law is no respecter of persons.

This is the point Senator Cruz was making. As a nation of laws, our liberty is diminished when the president does not follow the duly enacted law of the land. Our liberty is diminished when the president consolidates and wields power not delegated to him by the Constitution. Our liberty is diminished when Congress cedes its own power to the president and relinquishes its role as a check on executive power.

Leadership of the elected branches of government will always sway back and forth between the political parties. There is no such thing as a permanent governing majority. It is short sighted and shallow thinking for currently-serving members of Congress to approve of vesting expanded unconstitutional power in the hands of the president simply because at the moment the president is a member of their own party. Allowing the president to flout the law, change the law, fail to execute the law, or make up his own laws may be of some short term partisan political benefit. It may even for a short while preserve the political balance of power that they favor. It may for a short while win the news cycle for the president and his allies in Congress. But it will most assuredly backfire in the most spectacular of ways to all of our detriment.

In the short term it will backfire at the ballot box because people don’t like to see power abused and because when the president constantly changes the law no one knows what the law is and can’t then abide by it. But more importantly, Congressional acceptance of this new unconstitutional presidential authority will backfire when the other party wins the White House as eventually it will. By that time the precedent will have been set and Congress will not be able to reel back in the power it willingly traded for short term partisan gain. And when they seek judicial relief, the Supreme Court will say that it is a political question and defer to the political branches to work it out.

A nation of men will always wind up in the hands of a man whose hands you don’t want it to be in. This is why both parties in Congress in must vigilantly guard the constitutional balance of power and why its members must sometimes oppose a president of their own party. If they do so, the light of liberty will continue to shine brilliantly as a beacon of hope to the hopeless just as it has for more than 220 years. If they fail to do so they will find themselves and their branch of government increasingly irrelevant and our nation will flounder as each new president attempts to mold it in his or her own image.

This is what Senator Cruz was talking about. Pundits, politicians, and the public do themselves a disservice by not delving beyond the sensational headline.

You can view Senator Cruz’ full remarks to the Texas Public Policy Foundation here. It will be worth your time, I guarantee it.

Posted January 15, 2014 by Nathanael Ferguson