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 regulation. 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.”
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.
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?
— Randy Barnett teaches at Georgetown Law, where he directs the Georgetown Center for the Constitution. His book Our Republican Constitution: Securing the Liberty and Sovereignty of We the People will be published in April.