Episode Summary: Showdown at the Supreme Court

Podcast: The 47 Morning Update with Ben Ferguson
Host: Premier Networks
Release Date: June 22, 2021
Duration: Approximately 37 minutes

Introduction

In this episode of The 47 Morning Update, host Ben Ferguson delves into a comprehensive discussion with Senator Ted Cruz about pivotal Supreme Court cases that are shaping the American legal landscape. The conversation centers around recent decisions affecting religious liberty, adoption, healthcare, and the enduring battle over the Affordable Care Act (Obamacare). Additionally, Cruz shares insights from his book, One Vote Away, and discusses his active role in a significant Supreme Court case.

Philadelphia Case: Religious Liberty and Adoption (00:00 - 10:24)

The episode begins with Michael Knowles introducing the topic of a "showdown at the Supreme Court," highlighting major cases related to religious liberty and a challenge to Obamacare.

Key Case Discussed: Philadelphia's Exclusion of Catholic Social Services

• Background: The city of Philadelphia barred Catholic Social Services (CSS) from participating in foster care adoptions because CSS refused to place children in same-sex households, insisting on traditional mother and father roles.

• Supreme Court Decision: In a unanimous 9-0 ruling, the Supreme Court struck down Philadelphia's exclusion of CSS, deeming it unconstitutional.

• Dissent and Divisions: Despite the unanimous decision, Cruz points out underlying disagreements among the conservative justices. Chief Justice John Roberts authored a narrow majority opinion referencing the controversial Employment Division vs. Smith case, which reduced protections for religious liberty. Justices Alito, Thomas, and Gorsuch dissented vigorously, arguing that the Court avoided addressing the constitutional question directly (10:24).

Notable Quote:
Senator Cruz at [10:24]:
"The disagreement was that Chief Justice Roberts wrote the majority opinion. It's a very, very narrow opinion, and it concerns a decision of the Supreme Court decades ago called Employment Division versus Smith."

Obamacare Challenges: Constitutional and Procedural Debates (10:24 - 27:08)

Senator Cruz transitions to discussing the ongoing challenges to Obamacare, emphasizing the Supreme Court's role in upholding the law despite multiple attempts to dismantle it.

Three Attempts to Strike Down Obamacare:

1. First Challenge (2011):

   • Issue: The individual mandate exceeded Congress's authority under the Commerce Clause.
   • Outcome: Initially, the Supreme Court upheld Obamacare, with Chief Justice Roberts introducing justifications that would later be seen as a departure from traditional conservative interpretations.

2. Second Challenge:

   • Issue: Determined the federal government's ability to establish exchanges even if states declined, arguing that the federal government could step in as a state actor.
   • Outcome: The Supreme Court upheld this provision, authoring decisions that stretched constitutional interpretations.

3. Third Challenge:

   • Issue: Following the Trump administration's reduction of the individual mandate penalty to zero, Texas challenged the constitutionality of Obamacare, arguing the mandate was no longer a tax.
   • Outcome: The Supreme Court rejected Texas's challenge 7-2, primarily on the grounds of standing, asserting that the plaintiffs did not demonstrate sufficient injury (27:08).

Notable Quotes:
Senator Cruz at [18:00]:
"The Supreme Court concluded that Texas and a bunch of other states that were suing did not have standing to sue. And the individual plaintiffs, there were also some individual people who were part of the lawsuits. They said they didn't have standing."

Senator Cruz at [23:25]:
"By the way, there are legal systems that allow that, that actually have their legal systems. For example, the legislatures can ask the court, give us a legal decision on this question of law. Our system doesn't do that."

Insights from One Vote Away: History and Impact of Supreme Court Nominations (27:08 - 36:45)

Drawing from his book, One Vote Away, Senator Cruz provides a historical overview of Supreme Court nominations from President Eisenhower to the present, highlighting patterns that influence the Court's current dynamics.

Key Points:

• Principled Constitutionalists: Justices like Scalia, Thomas, Alito, and Rehnquist exemplify appointed judges with strong conservative records and unwavering constitutional stances, contributing to a reliable conservative influence on the Court.

• Controversial Appointments: Cruz criticizes appointments like John Roberts and Brett Kavanaugh, suggesting that their cautious approaches and lack of robust judicial records may lead to unpredictable or less conservative rulings.

• Potential Divisions: The current conservative majority may not be as solid as previously thought, with justices like Barrett and Kavanaugh potentially aligning more with Roberts than with the staunch conservatives, signaling possible fractures in future landmark decisions.

Notable Quotes:
Senator Cruz at [33:52]:
"If you have someone running for office, you decide you want to run and challenge some your member of Congress or your senator. And let's suppose you've saved some money. You've got a house and you take, say, a mortgage on your house and you put $500,000 into the campaign, and that's the money that you use to win or not."

Senator Cruz at [35:00]:
"As the Constitution was initially designed, senators were appointed by the state legislatures. And so the Senate operated as a check on the federal government's power."

Senator Cruz's Supreme Court Case: Campaign Finance Reform (36:45 - 32:09)

Senator Cruz discusses his role as a plaintiff in a Supreme Court case challenging a provision of the McCain-Feingold Act related to campaign finance.

Key Details:

• Provision Challenged:

  • Rule: A candidate cannot repay themselves more than $250,000 in personal loans to their campaign using funds raised after the election.
  • Argument: Cruz contends this restriction infringes on free speech rights, arguing that individuals should have the liberty to invest personal funds in their political campaigns without undue limitations.

• Legal Proceedings:

  • District Court: Cruz won unanimously in a three-judge district court, with Judge Naomi Rao authoring the opinion.
  • Supreme Court Review: Under McCain-Feingold, the case is automatically appealed to the Supreme Court, regardless of the Court's usual discretionary review process.

• Implications:

  • Free Speech: Upholding the provision would restrict candidates' abilities to fund their campaigns, particularly disadvantaging challengers against incumbents and benefiting the wealthy.
  • Potential Outcome: Cruz believes the Supreme Court will rule in favor of his challenge, enhancing free speech protections in campaign financing.

Notable Quotes:
Senator Cruz at [27:39]:
"The law that I'm challenging, and I think our chances are very good that the Supreme Court's gonna agree with us that you can't prevent people from investing their own money in political speech and trying to convince the American people of the policies they support."

Senator Cruz at [30:15]:
"Whenever you have campaign finance laws that are passed by Congress, you gotta remember these are incumbent politicians who are passing laws and their principal objective is to prevent anyone from beating an incumbent politician."

Constitutional Amendment Discussion: Balancing the Budget and Term Limits (32:09 - 36:45)

Towards the episode's end, Michael Knowles poses a hypothetical question to Senator Cruz about adding or removing a constitutional amendment unilaterally.

Senator Cruz's Response:

• Amendment to Add:

  • Balanced Budget Amendment: Ensures the federal government does not spend beyond its means.
  • Term Limits Amendment: Limits the number of terms elected officials can serve, enhancing democratic accountability.

• Amendment to Remove:

  • 17th Amendment: Establishes the direct election of U.S. Senators by the populace instead of appointment by state legislatures.
  • Rationale: Repealing it would return Senate appointments to state legislatures, ensuring senators remain accountable to state governments rather than direct voters, which he argues would better check federal power.

• Policy Proposals:

  • Fair Tax: A consumption-based tax system replacing the income tax to promote simplicity and fairness.
  • Flat Tax: A more achievable step towards tax simplification, though still an income based system.

Notable Quotes:
Senator Cruz at [33:52]:
"I think a budget amendment, which most of the states have, would be a really big deal too. So those are probably the top two that I would add."

Senator Cruz at [35:00]:
"As the Constitution was initially designed, senators were appointed by the state legislatures. And so the Senate operated as a check on the federal government's power."

Conclusion

The episode wraps up with Michael Knowles and Senator Ted Cruz summarizing their discussions on the Supreme Court's trajectory, recent landmark cases, and the potential implications for future legal battles. They emphasize the importance of a reliably conservative judiciary and the critical role of upcoming Supreme Court decisions in shaping American policy and governance.

Key Takeaways

1. Supreme Court Dynamics: Recent unanimous and split decisions highlight potential fractures within the conservative majority, raising questions about future rulings on abortion and Second Amendment rights.

2. Obamacare's Endurance: Despite multiple challenges, the Affordable Care Act remains upheld, partly due to narrow legal interpretations of standing and legislative maneuvers.

3. Campaign Finance Reform: Senator Cruz's active legal involvement underscores ongoing debates over free speech and the influence of money in politics.

4. Constitutional Amendments: Discussions around possible amendments reflect broader efforts to reform governmental structures and fiscal policies to better align with conservative principles.

5. Judicial Appointments: The importance of appointing justices with strong, principled records is emphasized for maintaining a consistently conservative judiciary.

Notable Quotes with Timestamps

• Senator Ted Cruz on Employment Division vs. Smith:
  "That was a decision from Justice Scalia that lessened the protections for religious liberty." ([06:38])

• On the Unanimous Philadelphia Ruling:
  "The result in the Philadelphia case is unquestionably right, that you shouldn't be excluding the Catholic Social Services." ([10:24])

• On Standing in Obamacare Case:
  "They concluded that Texas and a bunch of other states that were suing did not have standing to sue." ([23:25])

• On Repealing the 17th Amendment:
  "I've said before, if I could push a magic button and make the 17th amendment go away, I would." ([35:00])

This episode of The 47 Morning Update with Ben Ferguson offers an in-depth exploration of critical Supreme Court decisions and their broader implications, reinforced by Senator Cruz's expertise and proactive legal engagements. Listeners gain valuable insights into the evolving judicial landscape and the strategic considerations shaping America's legal and political future.