HH: Joined now by United States Senator Ted Cruz on the Hugh Hewitt Show. Senator, always a pleasure to talk to you, thanks for joining me.
TC: Hugh, my friend, it’s great to be with you.
HH: I want to start by asking you to look back at your time as a law clerk to Chief Justice William Rehnquist and ask yourself if he would recognize the federalism doctrine employed today by Anthony Kennedy in the DOMA case.
TC: I don’t think he’d recognize it at all. It was, well, let’s be fair. He actually would recognize it, but he would be deeply disappointed, because it’s part and parcel of a pattern we’ve seen the past several decades of the Court of repeatedly the Court substituting its own policy judgments on contested area of social dispute for the preferences and decisions democratically expressed through the people. And I think the decisions today were regrettable. In the state of California, the people of California went, and they voted in Proposition 8 about how to define marriage in the state of California. And the Supreme Court today allowed instead for the courts to set aside that judgment of the voters of California, and impose a very different definition of marriage than the definition that the voters of California chose, which is a traditional marriage of one man and one woman.
HH: Someday soon, Senator, you’re going to sit on the Judiciary Committee when a nominee to the Supreme Court comes before you. There is no practical way to stop this, is there?
TC: Well, the only way to stop it is to…
HH: And by…I don’t mean the decision, I just mean judicial activism of the sort we saw today.
TC: The only way I think to do so is to insist upon nominees who will follow the law, who don’t view being on the federal bench as an invitation to be a platonic philosopher-king, to have nine unelected lawyers decreeing what our answer should be, what our policy position should be on every hot button issue of the day. I think it is a much sounder approach to say let the people decide, let’s vote on it, and you know what? The people in California will come to different decisions than will the people in Texas or Florida or Vermont, and that’s the beauty of our federalism. We’ve got 50 states, and people with different values, different morays. And why had this all over to unelected federal judges to impose their values on all 50 states?
HH: Now Senator, in our brief time, I want to talk to you about the immigration bill, which I used to be in favor of, but I now oppose after Corker-Hoeven, the amendment which gutted the fence. And I’m going to talk to Senator Hoeven next hour about this. But am I correct, do you agree with my legal analysis that there’s absolutely nothing compelling the construction of even one mile of double layered fencing, and probably not even a single mile of any kind of new fencing?
TC: No, that’s exactly right. I mean, as you know, federal statute has required since 2006 the construction of 700 miles of double fencing, and the federal government simply hasn’t complied. They’ve constructed about 36 miles. And the amendment that was touted as a border security amendment weakens the requirement of federal law, and just like the prior requirement, we can expect with considerable certainty that it will be disregarded as well.
HH: There is in the Corker-Hoeven amendment a savings clause, which also, I think, preserves citizen standing to bring Endangered Species Act and Clean Water Act challenges against fence construction, and an empowerment of the secretary of Homeland Security to simply declare herself not bound by any report that comes back. Am I reading this wrong? Because I think I’m reading it the way a litigator opposed to the fence would read it, and they would laugh, Ted Cruz, at this.
TC: I think you’re exactly right, and you know, this bill has roughly a thousand waivers in it. And I mean, much like Obamacare, just about every major provision gives Janet Napolitano or another member of the Obama cabinet the ability to waive any of the law enforcement in the border security provisions. And we have certainly seen with the IRS, with Benghazi, we’ve certainly seen ample reason to trust waivers given to this cabinet and their fidelity to law. And I think this current bill, if it is passed, if the House passes it, I don’t think the House is going to pass it, but if it did, I think it would make the problem worse. It continues the pattern we saw in 1986 of legalization first and then border security maybe someday in the future. And what happens is the border security never happens.
HH: Now Senator Cruz, I agree with Bill Kristol that I hope the House does not pass anything. I don’t want a conference. I do not trust it. I watched your colloquy today with Patty Murray trying to preserve the conference on the budget from running amok, and I was not satisfied that she was being candid with you. I think you’ve got their number on this. Would you trust a House-Senate conference on the immigration bill?
TC: Well, it was, there would certainly be considerable reason to have concerns, especially the one danger of something passing in the House that really does damage on immigration is it something comes out of conference and ends up passing with all the House Democrats and a tiny handful of Republicans. And that’s one way this Gang of 8 bill could pass, and I think it would do enormous damage. You know, one of the most perverse aspects of this bill, as you know, is its intersection with Obamacare puts in effect a $5,000 federal tax penalty on U.S. companies that hire U.S. citizens or legal immigrants, and basically sets up a hiring preference for those who are here illegally. And I think that would only drive up unemployment, particularly among young people, among African-Americans, among Hispanics. And it really is indefensible to put a penalty on hiring U.S. citizens, and on hiring legal immigrants who follow the rules and come in the right way. And it’s indefensible to give essentially a preference to those who broke the law and came here illegally.
HH: Senator Cruz, continue the good fight. 30 seconds, I know you’ve got to run. Do you see support gathering or falling away from the Senate bill?
TC: I think support is falling away from the Gang of 8. For one thing, people are coming together enormously. We’ve launched a national petition at www.securebordersnow.com. Over 100,000 people have signed up in the last week insisting we actually fix the problem. Secure the borders first. Don’t go down the road of legalization first and never securing the borders.
HH: Senator Cruz, always a pleasure, talk to you again soon.
TC: Thank you, my friend.
End of interview.