Cruz vs. Rubio and the Constitution

Published 8:37 am Wednesday, December 30, 2015

By Harold Pease, Ph. D

The December 15, 2015, Republican Presidential Debate featured a stark clash between the only two Hispanics running from either party, both also the sons of immigrants to this country.  A successful bid would make either our first Hispanic president.  But on the National Defense Authorization Act (NDAA) and the Bill of Rights they are on opposite ends, one opposing the other supporting.

A question with respect to the extremely controversial, largely on constitutional grounds, NDAA should have been a top news item in the presidential debate for three reasons: first, it had just been approved by both houses of Congress and was then on the President’s desk for his signature, second, a new president (presumably one of the debaters) would inherit the power to detain indefinitely and without trial American citizens he or his military suspected was a terrorist threat, and finally, all this in light of the ISIS terrorist attack in San Bernardino by one of our own.   It wasn’t.  Amazingly no commentator in any of the debates has asked about the NDAA.

It would not have come up at all had not Senator Marco Rubio accused rival Senator Ted Cruz of having voted against it every year since its inception in 2011 and accurately assumed that Cruz would veto it were he the president.  Senator Cruz responded, “I oppose the federal government having the authority to detain U.S. citizens permanently with no due process.  I have repeatedly supported an effort to take that out of that bill.”   Rubio countered, “If you’re an American citizen and you decide to join up with ISIS, we’re not going to read you your Miranda rights.  You’re going to be treated as an enemy combatant, a member of an army attacking this country.”  Senator Rand Paul attempted several times to have input in support of the Cruz position but was not allowed.

So why is this an issue?  It is the word “suspected.”  In the United States you are presumed innocent until proven guilty.  And there is the damage to the Bill of Rights.

In the NDAA is a provision authorizing the military, under presidential authority, to arrest, kidnap, detain without trial, and hold indefinitely, American citizens thought to “represent an enduring security threat to the United States.”  Simply stated it defied Habeas Corpus (your constitutional right not to disappear at the hand of government) Article I, Section 9, the Posse Comitatus Act of 1878 (preventing the military from having a law enforcement function in the United States), and essentially gutted large portions of the Bill of Rights especially amendments 4, 5, and 6 with secondary damage to 1, 2 and possibly 8.  It is the single most dangerous law passed by Congress in U.S. History.  No freedom or constitutional advocate should be supportive of punishment without trial.

Many seem not to understand that a non-specific definition of terrorism, such as that noted above, can easily be turned into a revolving definition of terrorism and used to wipe out either an opposing party or philosophy.  Imagine being arrested, kidnapped, and secretly shipped to Guantanamo Bay (or some other undisclosed location) for defending the Constitution.  Such is possible under the NDAA.  Republican President Richard Nixon used the IRS to persecute his political enemies in the 1970’s, as has Democratic President Barack Obama in the last seven years.   Neither political party is without fault on this issue.

Perhaps Tea Party Senator Ted Cruz said it best when he proudly told his constituents: “Today I voted against the National Defense Authorization Act.  I am deeply concerned that Congress still has not prohibited President Obama’s ability to indefinitely detain U.S. citizens arrested on American soil without trial or due process.  The Constitution does not allow President Obama, or any President, to apprehend an American citizen, arrested on U.S. soil, and detain these citizens indefinitely without a trial.”  We agree and that is why the National Defense Authorization Act of 2015 is still dangerous, still unconstitutional and still unacceptable in a free country!!

Republican Senators Lindsey Graham and John McCain pushed NDAA through the Senate in 2011 and Democrat President Barack Obama, promised to veto it, then reneged on the promise and signed it.  It largely nullifies the Bill of Rights for those accused.  No freedom or constitutional advocate should be supportive of punishment without trial.  In the 2016 presidential race only Ted Cruz and Rand Paul, from either major political party, have voiced opposition to it.  Presumably all other candidates favor it.  Senator Rubio consistently voted for it and is probably the most outspoken 2016 presidential contender, from either major political party, advocating it.  As such it is unlikely that, if elected president, he could fulfill the oath of office to “preserve, protect and defend the Constitution of the United States.”

Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit