Where is Ted Cruz when American democracy needs him?

Austin Sarat, Tribune News Service

The president is ignoring the law when he isn’t intentionally violating it. He is dissolving federal agencies created by Congress and impounding funds even though that is clearly prohibited. He is governing by issuing executive orders and even claims the power to roll back birthright citizenship, ignoring the Constitution itself. All of this and an unelected oligarch given free rein by the president to ransack government departments and threaten civil servants. If Americans weren’t living it, it would be hard to believe that this could be happening in a nation founded on principles of limited government, separation of powers, and checks and balances. We need a champion of constitutional government, someone who calls themselves a “constitutionalist” and has spoken and written powerfully in defense of the separation of powers and in opposition to the “imperial presidency.”

I nominate Republican Senator Ted Cruz. American democracy needs him. Before explaining why I am turning to Cruz, let me note that today, Republicans in Congress are mostly ignoring what President Donald Trump is doing or writing it off as just the sort of thing presidents should do. Take House Speaker Mike Johnson. As an article in The Independent notes, “In a press briefing at the Capitol on Wednesday night, Johnson was quizzed on how DOGE, an advisory body tasked with cutting programs and slashing federal spending, and its unelected leader have assumed powers supposed to be reserved to Congress.”

“Is there an inconsistency,” he was asked, “by Republicans on one hand, where we’ve heard for years now, ‘All we want is to not have unelected bureaucrats in charge of things downtown,’ and yet ceding Article I powers to the executive branch under Elon Musk?”

“No,” Johnson replied. The Speaker went on to explain, “You know me. I’m a fierce advocate and defender of Article I.” But, instead of defending the prerogatives of Congress to appropriate funds and establish or close federal agencies, Johnson turned his fire to the media. “There’s a gross overreaction in the media to what is happening.” Then, Johnson mischaracterized and minimized the gravity of what Trump and Elon Musk are doing.

“The executive branch of government in our system has the right to evaluate how executive branch agencies are operating and to ensure that not only the intent of Congress in funding mechanisms but also the stewardship of precious American taxpayer dollars is being handled well.” Evaluating is one thing. Taking unilateral action is another. Exercising stewardship of tax dollars is one thing. Refusing to use them for the purposes for which they were appropriated is another. Recall that 50 years ago, Caspar Weinberger, former President Richard Nixon’s deputy director of the Office of Management and Budget, told Congress that “The Constitution empowered the president to decide whether to spend money.” It precipitated what one commentator rightly called “a constitutional crisis, since the Constitution gives Congress the power of the purse.”

Congress responded by passing the 1974 Congressional Budget and Impoundment Control Act. They thought “they had fixed the nation’s pocketbook, starting by limiting the power of Nixon to disrupt it.”

Unlike Speaker Johnson, Carl Albert, who was Speaker during the impoundment crisis, said that Nixon had crossed a red line. Impoundments, he said, “Strike at the very heart of Congress’ power of the purse, jeopardizing the explicit constitutional right of Congress to appropriate monies.” Citing the American Founders, Albert explained, “Control over spending is the birthright of an independent and responsible legislature. This birthright traces its lineage back to the determination of the nation’s Founders to take away the power of the purse from the Royal Governors of the colonies and vest it in their own legislative representatives.”

“Take away this power,” Albert concluded, “and Congress is nothing more than a debating society.” Many have already written about Congressional acquiescence in the present moment and the threat it poses to constitutional democracy. As the AP reports, “Congress is proving little match for DOGE as wary lawmakers watch it march through the bureaucracy.” The AP quotes Republican Sen. Kevin Cramer of North Dakota who acknowledged that “DOGE provides ‘cover’ for some Republicans who want to cut federal funds when Congress has failed to do so.” Those who are now criticizing the Trump Administration and Congress’ inaction, frequently refer to the eloquent defenses that the American Founders, like James Madison, offered of the Constitutional design and the separation of powers. It is always bracing to be reminded of what they had to say about liberty and despotism.

Perhaps, we don’t have to go back two hundred years for inspiration. Perhaps, we can draw on the wisdom of a modern-day James Madison.

That brings me back to Senator Cruz. Not today’s Ted Cruz, who rose to the defense of Trump/Musk just yesterday and denounced what he called “hysterical, doomsday scenarios” about the collapse of constitutional government, but the 2015 version. Recall that back then, Barack Obama was in the White House. Back then, Senator Cruz published a piece entitled “The Imperial Obama Presidency and the Demise of Checks and Balances.” Back then, he sounded much more Madisonian than he does today. Back then, the senator was quite comfortable with hysteria and doomsday scenarios. He warned apocalyptically, “Under President Obama, America has witnessed an unprecedented expansion of presidential power. This is not merely the observation of political opponents.” Cruz quoted approvingly Professor Jonathan Turley who said, “What’s emerging is an imperial presidency, an über-presidency... where the President can act unilaterally.”

Cruz called the president to task, saying Obama has “too often resorted to unilateral executive action to override acts of Congress or to implement policies that he was unable to enact through the proper constitutional process.” He reminded his readers that “Article I of the Constitution vests Congress, not the President, with the sole power to legislate. Article II, by contrast, charges the President with the responsibility to “take care” that the laws enacted by Congress be “faithfully executed.”

“Given this division of power,” Cruz flatly stated in a way that would have made Madison proud, “the President cannot act until Congress does.”

“President Obama,” he complained, “sees congressional inaction, not as a limitation on his power to act, but as a license to act. This is the logic of Caesar, not the logic of a president in a constitutional republic.” Cruz blamed much of this on “Congress’s refusal to fulfill its constitutional role. For far too many members of Congress,” he observed, “partisan loyalty to the President and ideological commitment to his goals outweigh any interest in asserting their own institutional rights and prerogatives as the people’s representatives. They are all too willing to hand power over to the President.” He called on his colleagues and the American people to be “constitutionalists—those who will respect and adhere to the constitutional design above all else, including party loyalty and ideology.