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The Constitutionalist

Utah’s freshman senator makes his mark

Sep 9, 2013, Vol. 19, No. 01 • By TERRY EASTLAND
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When I asked Mike Lee, the freshman Republican senator from Utah, how he identified himself politically, he said, “A constitutional conservative.” Note the adjective “constitutional.” It’s not surprising that the senator uses it. 

The Constitutionalist

Mike Lee leaves the Supreme Court following Obamacare arguments, March 2012.

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Lee is the son of the late Rex Lee, Ronald Reagan’s solicitor general from 1981 to 1985. Rex Lee dedicated his 1981 book, A Lawyer Looks at the Constitution, to Mike and his brother Tom. Despite their young age, they often watched their father argue cases before the Supreme Court. Conversation around the dinner table, Mike Lee recalls, centered on law cases, many involving the Constitution, such as INS v. Chadha (1983), a landmark separation of powers controversy in which the Court found the legislative veto unconstitutional. At the time of the Chadha discussion, Mike was 12 years old.

Mike graduated from Brigham Young in 1994 with a major in political science and then from its law school. He clerked for U.S. District judge Dee Benson and then for Third Circuit judge Samuel Alito. He joined the Washington office of Sidley Austin, working in its appellate practice, before becoming an assistant U.S. attorney in Utah for three years, handling cases on appeal. He served for a year as counsel to Utah governor Jon Huntsman and then clerked again for now Justice Alito. “Being 35 at the time, I was the geriatric law clerk,” he jokes. 

None of those jobs, you’ll notice, was in a legislature. But once Lee returned to private practice in Utah, “things started to happen in 2008 and 2009 that got me very concerned about the direction the country was heading in,” he says, recalling how he came to run for the Senate. Congress was passing bills that expanded the size and reach of government, he says, citing the Troubled Asset Relief Program enacted in October 2008 and the economic stimulus package a few months later. And yet there was “little debate” in Congress about what in the Constitution “makes it okay .  .  . or gives you the authority” to pass those measures. Congress “was spending trillions of dollars” and “had no idea how [it] would pay for this, except to send the bill to our children.” 

Lee says that in 2009 a friend invited him to his home to give a talk to people who were “concerned about public affairs and what was happening in Congress. So I went and gave .  .  . a speech about federalism and separation of powers and how we’ve drifted far from them. .  .  . I thought these people would be bored stiff,” but they told other friends. And so there were more invitations to speak, the audiences grew, and a candidate for Senate was born. Lee challenged fellow Republican Bob Bennett, an incumbent seeking a fourth term. 

The themes Lee ran on—federalism, separation of powers, and the rule of law—are key aspects of what The American Constitution, the classic work on the document’s origins and development (by Herman Belz, Winfred Harbison, and Alfred H. Kelly), calls “constitutionalism,” which it defines as “the theory and practice of conducting politics in accordance with a constitution.” Lee thus offered himself to Utahans as, in effect, a constitutionalist, and he did so in the first federal election in which voters could respond to the Obama administration’s big government agenda. In addition to the fiscal stimulus, that included the Affordable Care Act—“I raised it in almost every campaign speech,” Lee says—and financial and energy regulation. Associated with the nascent Tea Party movement yet resonating in many other quarters, constitutionalism figured in the midterm elections, boosting candidates contending for principles of limited government. That happened even in very red Utah, helping Lee upset Bennett.

During the campaign, Lee’s answer to the outsized deficits and increasing debt and the burden future generations would have to shoulder was a constitutional amendment requiring a balanced budget (BBA). Soon after taking his seat in January 2011—at age 39, the youngest senator in that session of Congress—Lee went to work on an amendment with his state’s senior senator, Orrin Hatch, who has pushed for a BBA for more than a quarter century. “He had a proposal, and I had a proposal, and we had a number of senators who joined mine and a number who joined his. We combined the two in order to unite the entire Republican conference.”

Like its many predecessors, the Hatch-Lee BBA would require that outlays for any fiscal year not exceed receipts. The purpose is to recover, as The American Constitution puts it, “measures of balance and political discipline as essential elements in limited constitutional government.” 

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