WASHINGTON -- Sen. Ted Cruz (R-Texas), fresh off firing up conservative crowds in Iowa and Texas by defending his push to defund Obamacare, came to The Heritage Foundation Wednesday for a much more academic talk on the power of treaties in U.S. law.
The Texas senator, who was solicitor general of the state and graduated from Harvard Law School before being elected in 2012, argued that the executive branch does not have the power to use a treaty to enforce a decision of the federal government. In doing so, he was articulating a more limited view of executive power.
"No matter what you think of the president, the president does not have the authority to inflict and make laws off the books, on whim and judgement," he said. "Whether you like it or not, it is unequivocal that the president of the United States doesn't have the authority under our constitutional system to simply decree it by will.
"That unified the left and the right in Medellin, saying, regardless of who the president is, we don't want that much power delegated to the president."
Cruz cited Medellin v. Texas, where he argued in front of the Supreme Court that the state did not have to comply with the Vienna Conventions in informing Mexican national Jose Medellin of his right to contact his consulate after being arrested for a double murder, a charge for which he was later convicted and sentenced to death. The case spurred Mexico to sue the United States in the International Court of Justice, which agreed that 51 Mexican nationals had a right to see their cases reviewed because they had not been informed of their rights. The Bush administration agreed with the ICJ and ordered reviews. However, the Supreme Court found Cruz's arguments more persuasive and ruled against Bush by a 6-3 margin.
"Unfortunately there the president who made an assertion of over-broad federal power was George W. Bush. He's a Republican. He's a former governor of the state of Texas," Cruz said. "And yet, I'm very proud that the state of Texas went before the U.S. Supreme Court and said, no president -- even if he is the former governor of Texas and a Republican -- no president has the authority to give away U.S. power."
The question of executive authority is not exactly academic. The first-term senator is going to states that will vote early in the 2016 election, such as Iowa and South Carolina, stoking suspicions of a presidential run. Yet Cruz's talk of limiting executive power could become future fodder in a campaign, just as President Barack Obama's past statements have become. As a candidate during the 2008 campaign, Obama promised to rollback executive power, yet he has embraced many of the policies of his predecessor, such as using "signing statements" on pieces of legislation, though he pledged not to use them.
Cruz spoke for nearly an hour Wednesday, and barely glanced at notes while citing multiple Supreme Court cases. His talk was part of an event on the upcoming case, Bond v. United States, in which a woman was convicted under the Chemical Weapons Convention Implementation Act of 1998 for putting poison in the car of the woman whom her husband impregnated. The constitutional question -- on the power of treaties to be used as federal policy -- is similar to Medellin, Cruz argued.
Cruz then went on to call out Democrats for ignoring executive power concerns during the Obama administration.
"I would note one of the things it's disturbed -- the almost total absence of Democrats speaking out at the abuse of executive power by the Obama administration," he said. "I spoke out very loudly when it was a Republican administration abusing its power."
"I thought it was striking when Rand Paul did his filibuster on drone policy, that only one Democrat showed up on the floor to support us, that was Ron Wyden. The other 53 Democrats, apparently had no concern that the administration used drones to target U.S. citizens," Cruz continued.
After Paul's filibuster, many Democrats struggled to say why they had been absent from Paul's speech, even more liberal members of the Senate. But not all Democrats have not been silent on the issue -- Rep. Alan Grayson (D-Fla.) recently held a hearing on Pakistani drone victims.
"I hope in time you will see some Democrats with the courage to speak out and say, 'Even if I might agree with this policy, the president doesn't have the authority to decree it unilaterally, and anytime you see too much power arrogated to the president it undermines the liberty of our country,'" Cruz said.