There was a lot of constitutional-related commentary at the New Hampshire GOP Debate on 2/6/16.
First, Sen. Cruz was asked about how he would reform immigration law. His answer invoked the Take Care Clause:
CRUZ: What you do is, you enforce the law. You know, under the Constitution, the president has an obligation to, quote, “Take care that the laws be faithfully executed.” Federal immigration law provides, if someone is here illegally and is apprehended, they are to be deported.
We saw just this past week the head of the border patrol union testify before Congress that President Obama had given the order to the border patrol to stand down, not to enforce the law. That is wrong. I will enforce the law, and for everyone who says, you can’t possibly do that, I would note that in eight years, Bill Clinton deported 12 million people.
In eight years, George W. Bush deported 10 million people. Enforcing the law — we can do it. What is missing is the political will. And when they were deporting the people, the border wasn’t secure, so they’d come right back. Once you secure the border, enforcing the law will solve this problem and that will benefit American workers.
Second, Donald Trump offered this explanation of how to replace Obamacare:
TRUMP: We’re going to repeal Obamacare. We are going to replace Obamacare with something so much better. And there are so many examples of it. And I will tell you, part of the reason we have some people laughing, because you have insurance people that take care of everybody up here.
I am self-funded. The only one they’re not taking care of is me. We have our lines around each state. The insurance companies are getting rich on Obamacare. The insurance companies are getting rich on health care and health services and everything having to do with health. We are going to end that.
We’re going to take out the artificial boundaries, the artificial lines. We’re going to get a plan where people compete, free enterprise. They compete. So much better.
Third, in one of the more feisty exchanges of the night, Donald Trump was asked about eminent domain:
TRUMP: Well, let me just tell you about eminent domain because almost all of these people actually criticize it, but so many people have hit me with commercials and other things about eminent domain.
Eminent domain is an absolute necessity for a country, for our country. Without it, you wouldn’t have roads, you wouldn’t have hospitals, you wouldn’t have anything. You wouldn’t have schools, you wouldn’t have bridges. You need eminent domain. And a lot of the big conservatives that tell me how conservative they are — I think I’m more than they are — they tell me, oh — well, they all want the Keystone Pipeline. The Keystone Pipeline, without eminent domain, it wouldn’t go 10 feet, OK? You need eminent domain. And eminent domain is a good thing, not a bad thing.
There is so much wrong here. There is a stark difference between eminent domain for public use,” which includes goals like roads or bridges, as well as common carriers, which include railroads and (at least under Texas law) pipelines.
Cruz continues to explain that those who are affected by eminent domain get “a fortune.”
And what a lot of people don’t know because they were all saying, oh, you’re going to take their property. When somebody — when eminent domain is used on somebody’s property, that person gets a fortune. They get at least fair market value, and if they are smart, they’ll get two or three times the value of their property. But without eminent domain, you don’t have roads, highways, schools, bridges or anything. So eminent domain — it’s not that I love it, but eminent domain is absolutely — it’s a necessity for a country. And certainly it’s a necessity for our country.
Wrong. The Constitution provides for “just compensation,” which is seldom fair market value. It doesn’t include transaction costs, legal costs, nor sentimental costs.
Jeb Bush interjected with a near-citation to the Takings Clause:
BUSH: The difference — the difference between eminent domain for public purpose — as Donald said, roads and infrastructure, pipelines and all that — that’s for public purpose. .
The Fifth Amendment states that “nor shall private property be taken for public use, without just compensation.” Public use, not public purpose. (Although, Justice Douglas in Berman v. Parker, and Justice Stevens in Kelo, erroneously frame the issue as one of “public purpose.”)
Bush continues that Trump attempted to use eminent domain to seize the property of an old woman in Atlantic City.
But what Donald Trump did was use eminent domain to try to take the property of an elderly woman on the strip in Atlantic City. That is not public purpose, that is down right wrong. And here’s the problem with that. The problem was, it was to tear down — it was to tear down — it was to tear down the house..
Trump denied that he seized the property.
TRUMP: Jeb wants to be — he wants to be a tough guy tonight. I didn’t take the property.
Bush shot back:
BUSH: And the net result was — you tried. And you lost in the court.
Trump said “The woman ultimately didn’t want to do that. I walked away.”
Bush knocked him back:
That is not true. And the simple fact is to turn this into a limousine parking lot for his casinos is a not public use. And in Florida, based on what we did, we made that impossible. It is part of our Constitution. That’s the better approach. That is the conservative approach.
Bush is exactly right, as the New York Times fact checker explained:
Mr. Bush is correct: Mr. Trump, with the help of the city, tried to use eminent domain against the woman, Vera Coking, when she refused to sell. He wanted her property to expand Trump Plaza Hotel and Casino. After a three-year saga, Ms. Coking prevailed in State Supreme Court.
Trump replied that the Keystone pipeline was a “private job.”
Trump: Eminent domain, the Keystone pipeline — do you consider that a private job? Do you — do you consider that…
Bush correctly replied, quoting the 5th Amendment, that it is a “public use.”
BUSH: I consider it a public use.
TRUMP: No — no, let me ask you, Jeb.
Do you consider the Keystone pipeline private?
BUSH: It’s a public use. It’s a public use.
TRUMP: Is it public or private?
BUSH: It’s a public use. TRUMP: Real — a public use?
TRUMP: No, it’s a private job.
BUSH: It’s a public use.
TRUMP: It’s a private job.
BUSH: Established by the courts — federal, state courts.
TRUMP: You wouldn’t have the Keystone pipeline that you want so badly without eminent domain.
Fourth, Rubio tied conservatism to the Constitution:
RUBIO: Well, I think conservatism is about three things and Donald touched on one of them, but it’s about three things. The first is conservatism is about limited government, especially at the federal level. The federal government is a limited government, limited by the Constitution, which delineates its powers. If it’s not in the Constitution, it does not belong to the federal government. It belongs to states, local communities and the private sector.
Fifth, in Trump’s discussion of the economy, he said:
And we’re not going to lose Pfizer, which is now leaving, and other great companies, which is now leaving.
This was a PERFECT opportunity to talk about Kelo, and ask whether he would use eminent domain to attract a Pfizer facility.
Sixth, Ted Cruz was asked about waterboarding and torture.
MUIR: Martha, thank you. We’re just going to — we’re going to stay on ISIS here and the war on terror, because as you know, there’s been a debate in this country about how to deal with the enemy and about enhanced interrogation techniques ever since 9/11.
So Senator Cruz, you have said, quote, “torture is wrong, unambiguously, period. Civilized nations do not engage in torture.” Some of the other candidates say they don’t think waterboarding is torture. Mr. Trump has said, I would bring it back. Senator Cruz, is waterboarding torture?
CRUZ: Well, under the definition of torture, no, it’s not. Under the law, torture is excruciating pain that is equivalent to losing organs and systems, so under the definition of torture, it is not. It is enhanced interrogation, it is vigorous interrogation, but it does not meet the generally recognized definition of torture.
MUIR: If elected president, would you bring it back?
CRUZ: I would not bring it back in any sort of widespread use. And indeed, I joined with Senator McCain in legislation that would prohibit line officers from employing it because I think bad things happen when enhanced interrogation is employed at lower levels.
But when it comes to keeping this country safe, the commander in chief has inherent constitutional authority to keep this country safe. And so, if it were necessary to, say, prevent a city from facing an imminent terrorist attack, you can rest assured that as commander in chief, I would use whatever enhanced interrogation methods we could to keep this country safe.
Seventh, Bush said he would not bring back waterboarding, but would keep Guantanamo open:
BUSH: No, no, I wouldn’t. No, I wouldn’t. And it was used sparingly, Congress has changed the laws and I — and I think where we stand is the appropriate place. But what we need to do is to make sure that we expand our intelligence capabilities. The idea that we’re going to solve this fight with predator drones, killing people somehow is a — is more acceptable than capturing them, securing the information. This is why closing Guantanamo is a complete disaster. What we need to do is make sure that we are kept safe — by having intelligence capabilities, both human and technological intelligence capabilities far superior than what we have today. That’s how you get a more safe place is by making sure that we’re fully engaged. And right now, this administration doesn’t do that.
Eighth, Rubio would also keep Gitmo open:
Rubio: But, here’s the bigger problem with all this, we’re not interrogating anybody right now. Guantanamo’s being emptied by this president. We should be putting people into Guantanamo, not emptying it out, and we shouldn’t be releasing these killers who are rejoining the battlefield against the United States.
Ninth, Mary Katherine Ham asked about executive orders. First to Sen. Cruz:
HAM: Thanks, David. Senator Cruz, on the campaign trail you’ve promised voters a lot, in fact if you’re elected president you’d say you end Common Core immediately, abolish the IRS, and do away with sanctuary cities. You’ve also been a persistent critic of President Obama’s executive overreach, going it alone, not working with Congress. How do you intend to implement this aggressive agenda within your Constitutional authority, especially given that it would require working with Congress and Washington players with whom you’re happy to say you have a strained relationship?
CRUZ: Well, thank you for that question. You know, there are three avenues of presidential authority to change the direction of this country. The first is executive power, the second is foreign policy, and the third is legislation. Executive power, as we all know, has been the preferred vehicle of President Obama, abusing his authority, abusing his constitutional authority. Now, the silver lining of that is everything done with executive power can be undone with executive power, so I have pledged on day one I will rescind every single illegal and unconstitutional executive action Barack Obama has done. That means on day one his efforts to restrict the Second Amendment go away with the strike of a pen. That means on day one his illegal executive amnesty goes away with the strike of a pen. The reason I can end Common Core at the federal level is because Obama is abusing executive power using Race to the Top funds in the Department of Education to force it on the states. That’s one avenue. The second avenue of change is foreign policy, and foreign policy can change the fastest. It’s worth remembering that Iran released our hostages the day Reagan…Was sworn in. And, the third is legislation, and that can only be done with the people behind you, which is why the two big legislative initiatives I’m campaigning on are repealing Obamacare, and adopting a simple flat tax to abolish the IRS.
Tenth, Trump offered these comments about executive action:
TRUMP: The problem with executive authority for the president, it’s really bad news for this reason. Since he’s given up on working with Congress, he thinks he can impose anything he wants. He’s not a king. He’s a president. An executive order should be used frankly in consolidation and with consulting with the leadership in the — in the Congress.
Eleventh, Bush said he would repeal (really rescind) the President’s unconstitutional executive orders, and focus on the 10th Amendment:
BUSH: This is a — this is an important subject. I agree with everything that’s been said here about repealing unconstitutional rules and rules that are creating real burdens for investing that creating jobs.
But we also ought to get back to being a Tenth Amendment country, as well, a country that respects the states to be able to make more decisions. And in the Bush administration, we would shift transportation dollars back to the states. I trust Kasich and Christie to build the roads and the infrastructure of their states than Washington, D.C.
EPA delegated authority, back to the states. Education dollars, back to the states. I would like to see reform take place all across the country, where there’s more vouchers, more freedom.
Twelfth, Trump made a circular comment about litigiousness, and what I think something about qualified immunity for excessive force suits:
MUIR: Great. Mr. Trump, I did ask about bridging the divide though as president. So what would you say to the American families who say we have lived through this, we have seen excessive force? What would you say to those people?
TRUMP: Well, they do. And, you know, they sue. Everybody sues, right? They see excessive — I mean, they go out, they sue. We have so much litigation — I see the courts, I see what they’re doing. They sue, and you know what? We don’t want excessive force. But at what point — you know, either you’re going to have a police force that can do its job…
Thirteenth, Marco Rubio gave a shot-out to the Little Sisters of the Poor:
And I do believe it is important also to recognize, you want to talk about religious discrimination in America. Well, I don’t think Barack Obama is being sued by any Islamic groups, but he is being sued by the Little Sisters of the Poor. We are facing in this country Christian groups and groups that hold traditional values who feel and in fact are being discriminated against by the laws of this country that try to force them to vie to violate their conscience.
Fourteenth, Chris Christie alluded to Jacobson v. Massachusetts, and the topic of mandatory quarantines with respect to the spread of diseases.
As fear spreads now of the Zika virus and with the Rio Olympics just months away, is there a scenario where you would quarantine people traveling back from Brazil to prevent the spread in the United States?
CHRISTIE: You bet I would. And the fact is that because I took strong action to make sure that anyone who was showing symptoms — remember what happened with that nurse. She was showing symptoms and coming back from a place that had the ebola virus active and she had been treating patients. This was not just some — like, we picked up her just for the heck of it, alright?
We did it because she was showing symptoms, and the fact is that’s the way we should make these decision. You make these decisions based upon the symptoms, the medicine, and the law. We quarantined her, she turned out to test negative ultimately after 48 hours, and we released her back to the State of Maine.
Fifteenth, several of the candidates were asked about requiring women to register for the draft, and issue resolved by the Court in Rostker v. Goldberg.
Rubio supported it:
But, I support that, and obviously now that that is the case I do believe that Selective Service should be opened up for both men and women in case a Draft is ever instituted.
As did Bush:
I do, and I do think that we should not impose any kind of political agenda on the military. There should be — if women can meet the requirements, the minimum requirements for combat service they ought to have the right to do it.
And if a young woman in this country wants to go and fight to defend their country, she should be permitted to do so.
Sixteenth, during a discussion on abortion, Rubio referenced the federal ban on a specific form of partial birth abortions, upheld in Carhart v. Gonzales.
Why doesn’t the media ask Hillary Clinton why she believes that all abortion should be legal, even on the due date of that unborn child.
Why don’t they ask Hillary Clinton why she believe that partial- birth abortion, which is a gruesome procedure that has been outlawed in this country, she thinks that’s a fundamental right. They are the extremists when it comes to the issue of abortion and I can’t wait to expose them in a general election.
However, in a line that was probably missed by most, Rubio acknowledged that the Constitution protects a right to abortion:
On the one hand is the right of a woman to choose what to do with her body which is a real right.
I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (here, here, here, here, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here, here, and here), and Bernie Sanders (here and here).
Disclosure: I support the Ted Cruz campaign.