Ted Cruz, Neo-Federalism and the Road Runner

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This week while we were all in New Jersey busy with “Bridgegate”, Senator Ted Cruz published a little essay in the Harvard Law Review which anyone can download and read. It isn’t easy to read unless you are schooled in legalese, as Harvard trained lawyers tend to be, but try to muddle through it anyway.

The essay reminds us how wonderful it is to have a large number of district courts and, very nearly, the Supreme Court under John Roberts in your back pocket. Clearly Republicans have reaped huge benefits from the Supreme Court in the form of the Citizen’s United decision and even what the courts did with the Affordable Care Act by allowing states to opt out. Having a court that is not only stuffed with Conservatives, although they can’t quite run amuck, but is also stuffed with Catholics, makes this the ideal time to challenge women’s health and reproductive rights, and we also have seen the outcomes of gutting the voting rights act. Fun times, eh?

In this particular essay Cruz presents a legal case to the courts which would change federal power with relation to non-binding treaties. Not only does he get to parade his bona fides, but he gets to fight another battle in the Republican war against a strong Federal government. If the courts allow Ted Cruz’s reasoning to be persuasive then President Obama will find his rights to enter into treaties curtailed, and, ostensibly the country will be able to “get down” with the original intent of the 10th Amendment, which is among the sketchiest of all the amendments to our Constitution. In the name of Federalism, so beloved by our forefathers, so true to the “pure” sense of our Constitution, Republicans march forward (or is it backward) in their war to wrest power from the Federal government and endow that power to the States (from whence it was stolen, they say).

If we do this thing – if we take power in these ways away from our Central government (our Executive and Legislative branches), it will change America in some really stunning ways. Laws regarding education, religion, immigration, health care, social services, marriage and many other area of human life will vary greatly from state to state and the Federal government will have no power over this. States cannot charge import/export fees against each other as per the Constitution, so I’m guessing our national “purists” will leave trade between states alone, although how companies that operate in several states at once will be able to comply with laws which vary greatly depending on which facility and which state you are in sounds like an organizational nightmare.

So whether he is arguing against an old migratory bird law or the more current case of Bond v. the United States (which argues that a woman in a US state violated a national/international treaty when she bought what she thought were harmful chemicals and doused various household surfaces with these chemicals so that her partner would touch them) violates the 10th Amendment, he is not really interested in the outcome of these cases, but only as this relates to limiting the treaty powers of the Federal government. The Bond case only seems frivolous, because behind it, and depending on what decision the court makes, rest serious limitations on the President’s rights to make treaties that are binding on the states.

The Republicans may seem divided and contentious but they are winning the war to downsize government, to give power back to the states, and to shrink both the Presidency and the Congress. Our government is smaller in every way than it was when Obama took office and the real battles are being fought in the states. I have written about what has been happening in the states several times and the New York Times spent at least two days this week with this issue in the top left corner of the front page.

Although we can all agree that our bureaucracy has become bloated and over-burdened with so many regulations that these very regulations have become almost unenforceable, it seems as if it would be more in our interests to trim the regulations and streamline the bureaucracy that to turn our country into 50 individual states each protecting its own turf and preening like a peacock in full display.

Perhaps since the courts have already moved so far to the right there is little that we can do to counteract the Republican advantage in this tug of war except to try to pay attention and hold the line whenever possible (like now). But we are so distracted by a traffic jam and a seemingly (and probably) criminally vengeful politician (and it is a very important story, but is it worthy of a whole week of broadcast mania), that we can barely mourn the failure to pass the Unemployment Insurance Extension, and isn’t that just one more blow against the size and scope of Federal government and one more win for the neo-Federalists.

Agenda 21 my eye – this paper may bring Agenda 21 to the minds of some, but only as another “overreach” of the Federal government. I am not buying the Federalist argument of the Right. It may have been perfectly appropriate in the 18th century, but it will not do for the 21st. If the Federal government decides to attack burgeoning bureaucracy and simplify all of it, I’m there, but these Federalist advocates are really just peacefully “seceding from the Union.”

(I always think of Ted Cruz as Wiley Coyote, but that’s not who he is. He is the Road Runner. Meep Meep)



by Nancy Brisson

This is the view from the cheap seats.

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