By Randy Barnett
Thursday, March 03, 2016
For the past four years, there have been four
conservative Tea Party senators who have, each in their own way, worked
together for the good of the country: Mike Lee, Rand Paul, Ted Cruz, and Marco
Rubio. Three of them decided to run for president. When Rand Paul asked me to
help his campaign, I agreed. Rand was already the closest to my views on the
proper role of the judiciary in enforcing the Constitution, and was the most
libertarian candidate for president in my lifetime (with a chance to get the
nomination). So I joined his campaign as an adviser, and the more I saw him in
action behind the scenes, the more my respect for him grew. I now look forward
to seeing him play an increasingly influential role in the Senate, a job he
clearly relishes.
I first met Ted Cruz when he was Texas’s solicitor
general, preparing to argue Medellin v.
Texas in the Supreme Court. I was giving a speech at the University of
Texas Law School and had been invited to be a judge for the moot court that was
being held to help him practice his argument. He was so impressive that I
resolved to watch him argue the following week in the Supreme Court; I never
saw a better advocate before the Court. Sometime after this, I became involved
with the Tea Party in promoting the Repeal Amendment, which would give a
majority of state legislatures the power to repeal any federal law or
obligation. While we were both attending a meeting, I asked Ted if he would
support the initiative. After hearing my description, he paused and replied,
“You know, it just doesn’t do enough” (which I must confess was my own
reservation). I thought to myself, “Wow, this is my kind of guy.”
I have never met Marco Rubio, but shortly after he was
elected to the Senate, I was lecturing in Germany to a group of European
liberal students. (In Europe, “liberal” means libertarian.) I played for them a
YouTube clip of Senator Rubio making a seven-minute floor speech extolling the
exceptionalism of the United States as a land of opportunity. I used the clip
to make two points. First, the fact that they had never heard of Rubio showed
that they live in a left-wing media cocoon. Unless they cultivated reliable
online sources, they would never have a complete picture about the American
political scene. Second, I wanted them to see how an actual elected politician
can make an argument from principle in a clear, coherent, passionate, and
inspiring way, and that they need not sacrifice their principles to advance
liberty in the public realm. After he started his campaign, I was pleased to
see my Georgetown Law colleague Nick Rosenkranz sign on as one of his advisers.
Like many others, I have been deeply disturbed by the
rise of Donald Trump to become the front-runner for the GOP nomination. As I
explained in USAToday, I view him as a threat to the very idea of
constitutionally limited government. Because of this, I propose the formation
of a new American Constitution party to serve as a lifeboat in which Americans
— conservatives, constitutionalists, and others who cannot support the Democratic
nominee — can take refuge. Such a party would either win outright, win in the
House of Representatives after no candidate secures an electoral majority, or
lose but deny Trump the chance to remake the Republican party in his own image.
Call this Plan B.
In the wake of Tuesday’s primary results, however,
another and easier path to defeating Trump has arisen; it can be Plan A. It
basically relies on the patriotism, good sense, and rational self-interest of
two men: Ted Cruz and Marco Rubio. The plan is simple: Each candidate publicly
pledges to support for president whichever of them has the most delegates to
the Republican convention. In return, the winner will make the other one his
running mate.
Cruz campaigns in Overland Park, Ks. (Kyle Rivas/Getty)
Together, it is reasonable to think they could muster
enough delegates to beat Trump at the convention, where you need a majority —
not a plurality — of delegates to secure the nomination. If such a deal were
announced publicly, Rubio and Cruz could stay positive about each other — while
debating their different policy stances and training their joint fire on Trump.
For many going into the election, either a Cruz-Rubio or
a Rubio-Cruz pairing was a dream team. And while some had their favorite, for
many, it did not matter much who was on top. Things always look different in
the middle of a campaign, and now the candidates appear to be at each other’s
throats. But this appearance is deceiving. Setting aside the now routine and
regrettable modern practice of a calling a rival candidate a “liar” about his
own record — or what he says about yours — neither has personally attacked the
other. To see what a personal attack would look like, you need only see what
Donald Trump — or the New York Times
— has said about each of them. So there is no insuperable barrier for a
rapprochement between them. And if they publicly make this deal, the degree of
acrimony in the campaign — as well as between their supporters — would be
greatly reduced. Whatever hostility is left can be trained on Donald Trump.
In the immediate wake of Super Tuesday, each has much to
gain from such a deal. As the candidate currently with more delegates, Cruz
would love to get enough support from Rubio’s delegates to secure the
nomination. For Rubio, currently in third place, for whom holding his home
state of Florida has now become a do-or-die situation, the idea of securing the
vice presidency would be a valuable insurance policy. As a young man, he would
have an inside track to the presidency in eight years. Our current immigration
situation would likely be addressed by a Cruz-Rubio administration to the
degree that the issue would no longer be any obstacle for him in 2024.
The beauty of this arrangement is that the primary voters
would be the ones to decide which candidate will be at the top of the ticket.
And voters could freely vote for their favorite with much less concern that
failing to rally around the other would be helping Trump. Let Ted compete with
Trump in the states with electorates like Texas, Iowa, Oklahoma, and Alaska.
Let Marco compete with Trump in states with electorates like Florida and
Minnesota.
In short, let Ted be Ted. Let Marco be Marco. Let the
most popular Republican win. And let
Trump be defeated. Deal?
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