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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 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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