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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.” 

Lee traces the loss of political discipline and the rise of the big, expensive federal government to the New Deal, but he does not seek its repeal. “We start with the government we have rather than the one that might have been, had things not unfolded the way they did,” he says, recognizing that some of the government we have was created by constitutionally dubious legislation. Lee’s concern is “the perpetually expanding federal government” we have now. “We should all come to agreement not to allow this perpetual expansion to continue.”

The BBA debated in 1995 during the Gingrich “revolution” is the one that’s come closest to passing and being sent to the states for ratification. More than two-thirds of the House approved it, while the Senate fell just a single vote short. Since then, support for a balanced budget amendment seems to have waned some. In 2011, the Hatch-Lee BBA failed on a 47-to-53, party-line vote, with all the yeas cast by the 47 Republican senators (67 votes being needed for passage). Lee remains an ardent advocate of the amendment, but with more immediate issues competing for his attention, it’s unlikely it will be voted on during this Congress. “We’re not pushing it,” a Lee aide told me.

Because the president has no constitutional role in the amendment process, a decision to propose (or not) the Hatch-Lee BBA to the states for ratification falls entirely to the Senate and the House. As Lee’s brief career shows, however, the work of a -constitutionalist senator is not simply an intramural matter. Sometimes the other two branches of government—the executive and the judicial—take actions that affect the Senate’s authority and demand response. A case in point: On January 3, 2012, President Obama appointed the director of the Consumer Financial Protection Bureau and three members of the five-member National Labor Relations Board. Obama made the four appointments pursuant to the recess appointments clause, which provides that the president may appoint officers “during the Recess of the Senate.” Such appointments are temporary since they “Expire at the End of [the Senate’s] next Session.” 

 

Lee immediately and persistently opposed the president’s actions. In statements in the Senate, testimony before the House, op-eds, and media interviews, Lee contended that the president had violated the Constitution and in particular the separation of powers, because the Senate was not in recess when the appointments were made. Moreover, he argued, it is not for the president to decide when the Senate is in session. “The Senate’s institutional prerogatives demand that we be allowed to make our own rules,” said Lee, “and yet President Obama’s actions would deprive our body of even that basic right.” 

Lee invoked the Federalist Papers in explaining that the Constitution provides the necessary means by which one department of the government may resist encroachments by the others. For Lee, the Senate’s “advise and consent” function offered just such a means of resistance to the president’s actions, and he announced that he would no longer be as deferential to the president’s judicial and executive nominees as he had been in the past and that there would be “a new standard” for confirmation until Obama rescinded the four appointments and restored “the Senate’s full constitutional right to advise and consent to his nominees.” While the president sought to justify the recess appointments as necessary to overcome partisan opposition to his selections, Lee said that to the contrary the issue was one of principle, and that if a Republican president had used the recess appointments clause as Obama had when the Senate was not in recess, he would have made the same constitutional objections and found a way to resist. 

During the six months from February 2, 2012, to August 2, 2012, Lee voted against 53 nominees, approving only 3, with the latter votes coming in the summer, when, following custom in a presidential election year, the Senate shut down its advise and consent function. To be sure, as the Senate finished up its business in the 112th Congress, Obama never did “rescind” the four recess appointments. But neither did he make any further recess appointments, notwithstanding Senate majority leader Harry Reid’s remarkably anticonstitutional urging that the president should recess-appoint all of his nominees.

Lee had touched a Democratic nerve, as was evident also from a weekly address in which the president referred to “one senator [who was] gumming up the whole works for the entire country.” The “one senator” was, of course, Lee, who was, according to White House press secretary Jay Carney, “hold[ing] up all nominations.” Carney was wrong. Lee was not holding up “all nominations,” but only voting against most nominations. And, with only a handful of Republicans typically joining Lee in opposition, all of the nominees were confirmed. 

Meanwhile, Lee followed the progress of a lawsuit contending that the three NLRB recess appointees had been unconstitutionally appointed, thus undermining the board’s authority to act. Early this year the U.S. Court of Appeals for the D.C. Circuit agreed with the plaintiff, a company against which the NLRB, with the three recess appointees sitting, had taken enforcement action. Now before the Supreme Court, the case is likely to prove one of the most important in the term that begins in October.

While Lee agrees with the appeals court decision, he wishes that his colleagues—Republicans and Democrats both—had been able to see their institutional interest more clearly and had joined him in opposing the president’s encroachment on the Senate’s prerogatives. In a press release responding to the Supreme Court’s decision to hear the NLRB case, Lee said: “I believe members of the Senate should have guarded their role in the confirmations proc-ess and upheld the Constitution’s separation of powers by taking actions that would have ensured the president could not bypass the Senate and unilaterally make appointments with political impunity.”

Lee may be naïve to think that could have happened, since the president who made the four appointments is a Democrat and the body that has advise-and-consent authority, the Senate, is controlled by Democrats. But the larger point is that Lee sees constitutionalism not just in the legalistic or judicial terms in which courts treat the Constitution, but also in political terms: Officials in the elective branches have crucial roles to play in determining what is constitutional. 

Both Lee’s judicial constitutionalism and his political constitutionalism are evident in the e-book he published this summer on NFIB v. Sebelius. That was the landmark decision handed down more than 15 months ago in which the Supreme Court upheld the Affordable Care Act. It’s not unusual for a senator or representative—or a president, for that matter—to criticize a Supreme Court decision. But what’s rare is for one of those elected officials to offer his views in a piece of writing longer than an op-ed. Clearly, Lee is serious about pressing his view of the case and undaunted by the task of taking on the chief justice, who wrote the Court’s opinion. The book’s title: Why John Roberts Was Wrong About Healthcare

 

The ACA’s most controversial provision is the individual mandate, under which Americans who lack health insurance are subject to a penalty. The mandate’s constitutionality was challenged in NFIB, and it was hard to see how the ACA could survive were the Court to strike down the provision.

Roberts in his opinion for the Court, joined by four other justices in a separate opinion written by Justice Scalia, said that the individual mandate could not be sustained under the commerce clause, which grants Congress “the power to .  .  . regulate Commerce .  .  . among the several States.” The five justices’ essential point was that the power to regulate interstate commerce does not reach inactivity, the focus of the individual mandate. Roberts then asked whether the mandate might instead be upheld as a valid exercise of the congressional power to tax. And, joined by the four judicial liberals in an opinion written by Justice Ginsburg, and over the objections of the Scalia foursome, Roberts decided it could be, notwithstanding, as the chief justice himself acknowledged, that the ACA describes the payment as a penalty, not as a tax. 

The other critical issue in NFIB, pressed by the states, concerned whether the Medicaid-expansion provisions of the ACA exceeded the authority of Congress under the spending clause. Roberts, joined by all the justices except Ginsburg and Sotomayor, found those provisions unconstitutional because they would have allowed the federal government “to force the states to implement a federal program” that would have threatened “the political accountability key to our federal system.” Or, as Roberts more vividly put it, the means of coercion Congress chose is “much more than relatively mild encouragement—it is a gun to the head.” But instead of striking down the Medicaid provisions, as the Scalia foursome would have done, Roberts effectively rewrote them, curing them of their constitutional infirmity and ensuring the ACA’s survival. 

That, in brief compass, is NFIB. And why was John Roberts wrong? Lee’s answer—essentially the same as Scalia’s—is that Roberts construed the individual mandate and the Medicaid-expansion provisions in ways that the statute cannot bear, in violation of the principles of federalism and separation of powers. Of federalism, Lee writes, because “the power of the federal government is limited, and not open-ended”; and of separation of powers, he says, because “the power to legislate .  .  . is vested in Congress, and not in the courts.” 

As one might expect of a former Supreme Court law clerk with experience as an appeals court litigator, Lee treats with care the legal issues in NFIB. But he also writes as the political actor he is, concerned with the consequences of the decision for Congress. Thus, he observes, “Now that the Court has indicated its willingness to go beyond deciding questions of constitutionality, and to make substantive changes to an otherwise-unconstitutional act in order to save it, the dangerous view that ‘lawmakers need not worry about the Constitution because that’s the Supreme Court’s job’ will become far more prevalent.”

Lee closes his book by calling for “a full repeal” of the ACA, “sweeping and dangerous legislation” that has been “rendered even more problematic by the Supreme Court’s decision to rewrite it.” Lee concedes that full repeal is unlikely, given Democratic control of the White House and Senate. So he offers “a different strategy,” noting that “strong Democratic majorities in both Houses of Congress refused to pass [the individual mandate] as a tax,” while the Supreme Court upheld the ACA by turning the mandate into a tax. “This irony,” Lee writes, “is only compounded by the fact that many of the ACA’s biggest champions in Congress are still insisting that the mandate is not a tax [Lee’s emphasis].” 

Hence the strategy: calling members’ bluff by putting to a vote a bill that would “repeal any and all language in the ACA suggesting that the penalty attached to the individual mandate might properly be viewed as an exercise of Congress’s power to tax.” Lee has such a bill—S. 560—and its text is included in Why John Roberts. “If enacted,” writes Lee, it would “make doubly clear” what was evident “the first time around: that the people’s elected representatives in Congress are unwilling to enforce the individual mandate through a burdensome new tax.” And “if enacted,” it would “gut the individual mandate provision,” without which “the entire ACA would become unworkably unstable, thus setting the stage for the statute’s inevitable .  .  . demise.” 

The key words are, of course, if enacted, and it is hard to imagine how a Democratic Senate would ever take up such a bill, much less pass it. Lee acknowledges as much but says that “the effort to pass it” would be worth it politically. So far, there’s been little effort to get it passed. In fact, if at this moment you are reading about S. 560 for the first time, you’re not alone. It’s largely unknown even in the Senate. When I asked Minority Leader Mitch McConnell about the bill, which I had to explain in some detail, he said that he wasn’t aware of it. While Lee insisted to me that the bill remains very important, he seems to have moved on, having teamed up with Texas senator Ted Cruz in the effort to defund Obamacare, which, at this writing, has the support of 14 Republican senators.

Almost halfway through his term, Lee is still establishing his identity as a U.S. senator. His constitutionalism is well developed, centered as it is in the Constitution’s structure and thus in federalism and separation of powers. But Lee has also taken positions with respect to civil liberties that make his constitutionalism more complex. Most notably, he opposes any policy that allows for the indefinite detention of American citizens without trial or proper constitutional process and has joined with Senator Dianne Feinstein in legislation to that effect that would amend the National Defense Authorization Act. 

 

While Lee’s efforts in behalf of constitutionalism have so far yielded few tangible results, they have affirmed the Constitution as the essential guide to how we should conduct our political life. When I asked Lee whether there’s more interest in constitutionalism these days, he said, “In general, probably so,” but credit for this, he added, goes to Obama, who’s “pushed the envelope so far that some people are starting to wake up.” 

What is less developed is the politics that a constitutional conservative might best pursue. In recent months, however, Lee has given two major speeches calling for a “new conservative agenda of reform,” centered on middle-class families and addressing taxes, higher education, transportation, and welfare. As Lee said in one of the speeches, “The great challenge of our time is the challenge of the forgotten family: the honest noble parents across the country trying to make ends meet in a society, economy, and democracy increasingly rigged by Washington against them and their children. .  .  . Building a new conservative agenda of reform around these moms and dads and kids .  .  . is the ‘Road to Majority.’ ”

Clearly, Lee is thinking about that road. He knows from experience how hard it is to legislate your proposals when the other party holds the presidency and the Senate. And he appears willing to take on the task of crafting a reform agenda that, while respecting the Constitution, appeals beyond the usual GOP precincts. The details are due to be rolled out this fall and winter—in time for debate as the midterm elections draw near. 

Terry Eastland is an executive editor at The Weekly Standard.

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