On Monday morning, the Supreme Court heard oral arguments over whether President Obama could make valid recess appointments when the Senate itself claimed to not be in recess. Sen. Mike Lee (R-Utah), a former clerk of now Justice Samuel Alito, was in attendance and afterwards professed himself “very confident” that the court would affirm the unconstitutionality of the appointments.
Last October, on the last day of the government shutdown, Senator Lee sat down with me to discuss his developing conservative communitarian policy agenda. Our discussion that day detoured into his thoughts on defending Congress’s place in the balance of powers and combating executive overreach, as well as reflecting on his efforts in the defund Obamacare campaign and government shutdown that was just ending.
TAC: One thing that I’ve picked up sifting through the various profiles, various remarks you’ve made, is that you seem to be one of those rare things, a senator who enjoys being in, or appreciates being in, the legislative body, when a politician can often have ambitions of various kinds that can take his eye off the ball. Do you feel that’s an accurate characterization, that you may have a special appreciation for the role of Congress and its prerogatives?
Lee: I was sent here to do a job, my job is to be a senator, to legislate. So I think my focus is best placed on legislating, and on engaging in those activities that the Senate is authorized to engage in … If you’re asking if I have presidential aspirations, the answer is no, I don’t [laughing].
TAC: Is there a way in which the lack of such aspirations can actually help to get work done in the Senate?
Lee: Never thought of it quite like that, you either have them or you don’t. It’s kind of hard for me to imagine what it would be like if it were different. But look, I’m focused on the job I’ve got, and not on another job.
I do focus on protecting the institutional prerogatives of the Senate. It’s one of the reasons I pushed back against President Obama’s unconstitutional recess appointments of January 4th, 2012. I think we have a duty consistent with our oath to uphold the Constitution, to protect it, to protect those authorities that are ours. The Senate is given the power to establish the rules governing its procedure, its own procedural rules, which means it has the power to decide when it is or is not in recess. The Senate was not in recess, according to its own rules, on January 4th, 2012, consequently the President had no power to utilize the recess appointments clause in making those appointments.
TAC: Do you feel that the Congress has ceded too many of its powers or prerogatives to the executive?
Lee: Absolutely, without question I do. It occurred over the course of many decades, it probably started during the New Deal era, at least more so, when we saw the beginnings of the massive regulatory state. And consequently Congress has delegated a lot of what is really law making power, a lot of power to executive branch bureaucracies, so we would pass something saying, “we shall have clean air,” and the EPA gets to decide what clean air is, what pollution is, what happens to polluters, then it enforces those same laws. This is one of the most fundamental aspects of the Constitution. And I understand that there is sometimes some gray area, surrounding where lawmaking ends and enforcement begins. But I’m not talking about the kinds of regulations governing what time the lights go on and off within the Department of Energy. I’m talking about rules carrying the force of generally applicable law that are basically made entirely within an executive branch bureaucracy that fundamentally alter the legal obligations of the public, and not just employees of the executive branch.
When we delegate that kind of law-making power, we contravene one of the most fundamental tenets, one of the most fundamental protections of the Constitution, which was informed by centuries worth of warnings from various political philosophers including Montesquieu, who told us, when you combine the power to make law with the power to enforce that law, you run the risk of some real problems. Montesquieu was very much at the forefront of the minds of many of our founders, basically all of our founders, and that’s why they set this up the way they did. And we have gotten away from that.
The courts have not been carefully interested in enforcing that aspect of the Constitution, and I suppose I understand why, they see this as a delicate issue, that involves some line drawing, some decision making that needs to be made among and between the political branches of government. There’s a part of me that wishes the courts would step in more often. I think if you were to interview most of the Supreme Court justices, most of them—perhaps even all of them—would say I’m not sure this is exactly what the Founding Fathers had in mind, that this much lawmaking power would be delegated to executive branch agencies. But the fact is, bureaucrats within the executive branch tend to be very well educated men and women, very well intentioned, but the fact is they are not elected.
TAC: And so how do you think Congress can go about getting some of those powers back? What path do you see towards such a reclamation?
Lee: The best solution, the solution I think moving forward would keep Congress accountable for lawmaking, would be for Congress to pass a proposal, of which I’m an original cosponsor, called the REINS Act, and the REINS Act says that for any new regulation that qualifies as a “major rule” based on the magnitude of its economic impact, it can’t take effect unless or until both houses of Congress pass it, affirmatively enact it and submit it to the President for signature or veto. I think that would be a very positive step in the right direction, because at least moving forward, that would mean that new major rules wouldn’t become law unless Congress actually made them law.
TAC: I’ve seen something similar where it doesn’t take effect for 60 or 90 days, but it goes to Congress where it’s able to be repealed … Is that a half step in the right direction to you, or do you really need that positive authorization in your view?
Lee: What you just described is in the law, it’s part of the, I think it’s called the Congressional Review Act, I want to say it was passed sometime in the mid-’90s. So what you described is consistent with that in that when one of these regulations is put forward, there is a certain period of time within which Congress may enact a resolution of disapproval.
TAC: And that doesn’t happen very often.
Lee: I think it’s happened once, maybe twice, in the, I don’t know, fifteen-plus years that it has been in effect. It happens very, very rarely. It’s interesting, though. The Congressional Review Act sort of represents the vestigial remains, not the vestigial remains, a remnant of the way things used to be done. We saw this big upswing in the delegation of rulemaking power, let’s say lawmaking power, back in the New Deal Era, let’s say between the 1930s and the mid-1980s. Gradually, Congress, as it delegates this power, would start to adopt more and more provisions that were known as legislative veto provisions. Where Congress would say Agency X has the power to make law in such and such an area, to make regulations in such and such area, but Congress has the power to undo those, sometimes it would say either House of Congress would have the power to undo it, that either the House or the Senate by a simple majority vote could knock down any regulation promulgated under that grant of authority. There were only a few of those starting out in the — I want to say the 1930s or maybe early ’40s. We had many hundreds of them in place by the early 1980s, and it became the subject of some litigation that made its way all the way to the United States Supreme Court in a case called INS v. Chadha.
In INS v. Chadha, the Supreme Court of the United States said that these legislative veto provisions were unconstitutional, regardless if they were a unicameral or a bicameral veto, because they said that amounts to another legislative act, it’s a de facto legislative act. And any legislative act requires two things to complete: it requires bicameral action on the same piece of legislation, you have to have passage in both the House and the Senate, and presentment of that single package to the president for signature or veto. So the Supreme Court invalidated, they struck as unconstitutional under the presentment clause, all these legislative veto provisions, hundreds of them. I think some people may have suspected, in the wake of INS v. Chadha, that Congress would be more reluctant to delegate so much rulemaking power, so much de facto lawmaking power, because all of a sudden Congress couldn’t have this. But it doesn’t seem to have made much of a difference, Congress has continued to delegate power left and right. So you might argue that Congress likes just washing its hands of some of the dirty work, and saying we’ll let the agencies work that out. That way when the constituents come in to complain, they say don’t blame me, blame the agency.
So anyway, what I’m getting at is that the Congressional Review Act represented an effort to try to bring back some of the benefits of the legislative veto provisions that were in place prior to INS v. Chadha, but it was an effort to make that process consistent with the Constitution. So the Congressional Review Act provisions we’re talking about are fully consistent with the Constitution, because you have to present them back to the president What I’m saying is that another way of making that same process constitutional, is that instead of having the default be, in the absence of Congressional action and signature rendered, their regulation stay in effect, what I’m saying is that you don’t make new law, you don’t make new law in these areas where you have a major rule unless you have a Congress that is affirmatively willing to enact it into law.
TAC: Looking back on the past few weeks, and everything that has gone on, do you feel like the process, the defund effort to shutdown to approaching the debt limit, got away from you a little bit?
Lee: I don’t think that’s how I would phrase it. Look, when you start out with something like this, you’ve got 435 individual personalities in the House of Representatives, 100 individual personalities in the Senate, then you’ve got the president, so you’ve got 536 people all working on something. It’s very difficult, it is literally impossible to know exactly how things are going to play out. So what I said, what got me started in this direction was what the president did in the first week in July.
When the president came out and said there are a few aspects of this law that I’m not going to follow, and he basically amended the Affordable Care Act in several ways that were announced that first week in July, he amended the Affordable Care Act without going to Congress. He even acknowledged as I recall, in one interview or one press conference, that ordinarily the president should probably go to Congress to do that, and ordinarily that’s what I would have done, but these are different circumstances. I’m still not sure what that means. If that just means I couldn’t do that here because Congress might not agree with me, I’m not sure. He took a really extraordinary step, several really extraordinary steps, of saying, I’m rewriting the law. At that point, his defense was, the law’s not ready to be implemented as it’s written.
So my response to that was that he himself acknowledges that it’s not ready to implement such that he can’t or won’t enforce the employer mandate, or can’t or won’t enforce the income verification privileges, or any other provisions that he basically amended himself out of by stroke of the executive pen. Then Congress shouldn’t fund it. Congress shouldn’t fund its implementation if he’s not willing to even follow the very law that he wants to implement. If it’s not ready, it’s not ready. And so I announced that I wouldn’t be voting for any continuing resolution that contained funding for the further implementation of Obamacare. Now when I made that announcement, I didn’t know who would or who wouldn’t agree with me. There ended up being 14 senators on a letter that I signed to that effect. There was a similar though not identical letter circulated in the House that I think got 80 or 90 signatures on it in the House. And it ended up getting a fair amount of attention. I didn’t know exactly what would become of that at the outset, no one could. …
The fact that it didn’t turn out the way that I would have like, the fact that there were not, at the end of the day, enough senators and representatives willing to stand up and say the exact same thing did not excuse me, could never have excused me from voting in the way I thought was appropriate and necessary.
Jonathan Coppage is an associate editor of The American Conservative.