WASHINGTON – The President Barack Obama administration, through the U.S. Department of Justice's legal advocacy, has been extreme in its defense of federal power, Sen. Ted Cruz (R-Texas) said during a Thursday speech at The Federalist Society's "2013 National Lawyers Convention." To illustrate his point, Cruz discussed the nine times that the U.S. Supreme Court has unanimously rejected DOJ arguments.
Those nine cases are discussed in a report published by Cruz's office, which was handed out before the speech and is available on his website.
Cruz focused most of his remarks on three of those cases.
In the first, United States vs. Jones, DOJ argued that it is not an invasion of privacy when the government places a GPS tracking device on a person's vehicle, and, thus, electronic surveillance can be used without a search warrant or probable cause. All nine justices rejected that argument. Five justices said attaching a GPS device is a search and the other four justices said the defendant had a reasonable expectation of privacy.
The second example was Sackett vs. EPA. The Sacketts were in a dispute with the Environmental Protection Agency and faced fines of $75,000 per day. DOJ argued that the Sacketts could only sue the EPA after they begin paying the fines.
If DOJ's argument had won, Cruz explained, "the EPA would be in a position to extort settlements from anybody, because, who can pay $75,000 a day?"
In Hosanna-Tabor vs. EEOC, Cruz's third example, DOJ claimed that First Amendment religious freedom protections to not extend to a religious group's hiring and firing practices.
In the oral arguments for that case, Cruz recalled, Justice Elana Kagan, who was appointed by Obama and had served as his solicitor general, expressed alarm at the DOJ's position.
According to Cruz, Kagan asked the DOJ attorney, "do you believe that a church has a right, grounded in the Free Exercise Clause and/or the Establishment Clause, to institutional autonomy with respect to its employees."
The DOJ attorney answered, "we don't see that line of church autonomy principles in the religious clause jurisprudence as such."
Kagan described the DOJ's position, that "neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church's relationship with its own employees," as "amazing."
"These positions are not reasonable litigating positions within the bounds of ordinary discourse," Cruz declared. "These positions are extreme and they are united by one thing – an embrace of unchecked federal government power."
A Justice Department's defense of expanded federal government power is a "bipartisan tendency," Cruz added. "Both parties have given in to excesses in federal government power."
Cruz then asked, "where are the Democrats, speaking up about this administration? Where are the liberals?"