On Senator Cruz’s Point of Order and The Constitution

What follows is a short summary of the controversy in the Senate yesterday and an explanation of why many of the people outraged have an incorrect impression about what occurred:

First, Senators Lee and Cruz objected to the Senate breaking for the weekend because Harry Reid would not allow a separate vote on defunding President Obama’s immigration action. This turned out to be a strategic blunder because it allowed Democrats to begin the process of confirming several of the President’s nominees that had previously been held up by Senate Republicans. Senator Cruz’s supporters argue that these nominees would have been confirmed anyways after the vote on the Omnibus bill. There are a lot of people associated with the Senate that disagree with this conclusion, but let us accept that this may be the case. Even if there was no major harm done, supporters can’t seem to name any benefits to the action. The main stated goal was to get a Constitutional Point of Order vote (supposedly) on Obama’s executive immigration actions. Any Senator can call for such a vote after cloture on a bill so this action did nothing to advance that goal. That vote would have simply occurred after the weekend instead of on Saturday (or the original schedule of Sunday) if the Senators had agreed to the recess.

After a lot of arguing, the Senate agreed to move forward on Saturday night. Senator Cruz brought up the Point of Order, which was voted down 74-22. Almost immediately there was outrage directed at the Republicans that voted no on this question. Several “Constitutional Conservatives” decried those Republicans as not caring about the Constitution and approving of Obama’s amnesty. Even more ridiculous, many began screaming about the need to primary those that voted against Senator Cruz. Ignoring the hysterics, these no votes do seem hypocritical given that almost everyone in the GOP has said Obama’s executive actions on immigration go beyond the limits on his power. In addition, this vote was framed as a vote on the Constitutionality of those actions. The problem with that conclusion is that it ignores what these Senators were actually voting on. Let me stipulate that this was basically a show vote and many truly did consider it a proxy for a vote on Obama’s immigration overreach. On that basis, I don’t really blame the “yes” votes. However, the reality is that the Senators did not vote on the Constitutionality of Obama’s executive actions. Senator Cruz raised a Point of Order questioning the Constitutionality of the entire section of the Omnibus Bill that funds the Department of Homeland Security (Section L). While it is true that department will be tasked with enforcing Obama’s executive action on immigration and Republicans are looking for ways to cut that funding, the idea that funding DHS itself is unconstitutional is wrong and silly. As Senator Corker (R-TN) pointed out, many felt that it would violate their oath to the Constitution to vote that something is unconstitutional when it clearly is not:

“‎While the president’s executive actions on immigration are reprehensible and deserve a strong response, I value the oath I took to support and defend the Constitution too much to exploit it for political expediency,” said Corker. “The Constitution gives Congress the power to fund the government so to assert that the House-passed spending bill is unconstitutional is not only inaccurate but irresponsible.”

It seems some people do need to read up on the Constitution, but it is not the Republicans that voted no last night. The real problem is that there seems to be a large contingent in the Conservative blogosphere that seeks every opportunity to be outraged at the GOP to the point that they don’t bother to find out why these Senators voted no or what the specifics of the votes were. I believe this attitude is not helpful in advancing conservatism or getting to the truth. If we are going to assert that the Constitution is important to us going forward, we should make sure we are invoking it correctly when criticizing the actions of others.


I want to make one more point: I have seen a lot of people arguing that GOP agreeing to Cromnibus somehow means they won’t do anything about Obama’s executive action. All of these people seem to ignore that the GOP’s primary condition for this bill was that the portion funding DHS only goes until February, unlike the rest of the bill, so that we can have a fight specifically about that immigration action then. That is also why Cruz etc. weren’t pushing an actual shutdown fight right now, just a show vote. Why would the GOP put themselves in a position to address just DHS funding in February if they didn’t plan on actually at least trying to fight over Obama’s actions?

3 Responses to “On Senator Cruz’s Point of Order and The Constitution”
  1. Jenny Hoffmann says:

    Enjoyed this post. Light gray small font is hard to read even when magnified.

  2. Good post. While I didn’t follow the drama closely yesterday, like you I get frustrated with people on our side who scream “betrayal” seemingly at the drop of a hat, especially when they don’t take the time to find out the whys of a situation, but just react. And this is the second time Cruz has lead an effort that seemed doomed to failure, leading one to ask what the point was.

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