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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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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.

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