tv Sen. Mike Lee Discusses Executive Power at the Hoover Institution CSPAN April 1, 2021 12:33am-1:12am EDT
[applause] >> here is a look at our live coverage thursday, at 10:00 a.m. eastern, a discussion on the pandemic and the medical supply chain from the washington international trade association. that is followed by a house administration subcommittee at noon, on access to voting in u.s. elections. at 3:30 therapy and institute looks at how the pandemic affects immigrant emilys. ron klain speaks to politico about the biden administration agenda. that is live at 9:00 e.a. at -- the trial continues for
derek chauvin who is charged in the death of george floyd. >> utah senator mike lee spoke about executive power under the constitution. this event was hosted by the hoover institution. it is 35 minutes. >> the hoover institution as a preeminent research center whose mission is dedicated to the supposed of political freedom.
the conversation series brings hoover fellows together with policymakers for discussions examining some of the nation's most vexing policy issues. by bringing together the key players, we hope to enrich the landscape of ideas, ask full questions, and seek powerful solutions to improve lives. today is my pleasure to talk to senator mike lee, discussing executive power under the u.s. constitution. he was elected in 2010 as utah's 16th senator. prior to becoming a senator he served as a law clerk for the u.s. district court in the u.s. court of appeals for the third circuit. he serves in the following committees; joint economic committee as ranking member, commerce, science and transportation, energy and natural resources, judiciary and the senate special committee on aging. he is a busy guy. what i want to recall, because i find this so refreshing, is that when he began running for senate in 2010 against an incumbent
senator of long standing, he used an unusual technique. he went to the small towns of utah and the more substantial cities and talked about the u.s. constitution. not about politics, policy and so forth but about -- he gave talks to them about the u.s. constitution itself. he used the federalist papers and so forth. that caught fire. as the kids say, it went viral and the rest is history. he is one of the more thoughtful senators in the united states. welcome, senator lee. one other personal note here, he got his taste for things constitutional from his father, former solicitor general rex
lee, the chief lawyer for the united states government under the early years of president reagan. i had the honor to be solicitor general lee's assistant. i am -- was very close to senator lee's father and still regard him as one of the great american lawyers of all time. welcome to his son and my friend, michael lee. sen. lee: it is a pleasure to be with you. you are one of my favorite judges to argue in front of on the u.s. court of appeals for the 10th circuit. you are someone whose opinions i value greatly and always look to and admire. i'm a big fan of your book, "the president would not be king."
it's a book i am loving and something every american needs to read. michael: that makes me feel very proud. that leads to our conversation today. there are many different things we could be talking about. we decided we will be talking about the presidency at this particular juncture in our history. as most people are aware, the presidency is not exactly what the framers envisioned. my book talks a lot about that issue. it's troubling because every time a different party takes over in the white house, everyone seems to flip sides. you really need a scorecard to know. everybody was worried about the
extent of executive power under president trump is now all for it and to an alarming extent the other way around. i like to think senator lee is somebody who has been sticking to the same principles across party lines. that is important because the constitution was not written for republicans or democrats. it was written to restrain power for everyone. he has been a leader in what they call the article one project, which is about revitalizing the powers of congress. senator lee, tell us about your understanding of the relationship between revitalizing congress and the over leaning powers of the president. sen. lee: there are two sides of the same coin. over the last 85 years or so, you have seen a trend.
this is a trend created by both political parties. under the leadership of the house of representatives, the senate and the white houses of every conceivable partisan combination, we have seen significant transfers of power in two stages. power is transferred from the people, where it is supposed to be exercised at the state and local level, to washington, d.c. within washington, d.c. it is handed from the elected lawmakers to unelected , unaccountable bureaucrats, or in some cases to the president himself. it has been disastrous. while not a lot of people focus on the causal relationship between the first step and the second, it is definitely there. the constitution was built on these twin structural protections. before we get to the bill of rights come to that valve shall -- thou shall nots of the
constitutions, we have structural protections, nonpartisan. not really even ideological. they are the vertical protection of federalism. most of the power is supposed to remain with the people at the state and local level, within states and political subdivisions thereof. only a few powers, those enumerated in the constitution being federal, and those necessary and proper to those powers are to be exercised at the federal level. then there is the horizontal protection separation of powers. , a legislative branch and executive branch and a judicial branch. when we started drifting from federalism, we created a sequence of events that would culminate and has continued to culminate in the transfer of power from legislative branch to the executive branch. once inundated with new powers, starting as i see it back to
april 12, 1937, when the supreme court decided to reinterpret the commerce clause more broadly to give congress more power. this culminated in a line of decisions called wicker v. shellborn. they then grew too much wheat, he defended himself by saying the weeds did not enter interstate, -- interstate commerce, by which i exceeded the federal limit to feed my family and farm animals and use the remainder as seed. the court said it did not matter if it was produced for economic purposes or home use, it had an economic impact. at that moment congress found , itself in charge of purely local interstate activities that while economic in nature, were still local.
labor, manufacturing, agriculture. they were suddenly federal. in order to keep up with this power and the accountability with it, congress started delegating the power to the executive branch. a slight oversimplification but in some ways, congress will pass a law saying we declare we shall have good law in area x and delegate the commission or department y or the president himself the power to make and interpret and enforce good laws in area x. this made the president, the executive branch and the president in particular into an imperial presidency of sorts. it has been used as a tool for members of congress to facilitate their quest toward perpetual reelection by helping them avoid difficult questions a lawmaker faces. it has resulted in the
accumulation of power in the hands of a few. it is ultimately bad for the people. it is a nonpartisan and bipartisan issue at once. michael: when political decisions are being handled in these commissions and agencies, how do the people that had as the people's will get translated in the government action? sen. lee: it doesn't. that is one of the problems with it. in my view, and i believe in the view of the founders. i would be hesitant to speak for them. i believe the way they wrote the constitution and the things they said at the time suggest that they believed the most dangerous branch of the three was the legislative branch. at least the most dangerous is the legislative power.
for that reason, they entrusted only to that branch of government that is most accountable to the people. when you place an intermediate step in between there and the lawmaking power is given to someone else, especially if that someone else is not elected or accountable to the people at the same intervals or any interval at all, as is the case with most executive branch bureaucrats, the people are taken completely outside the process. it is not only anti-constitutional but fundamentally antidemocratic. michael: we have seen this under presidents of both parties. i think of a clear case where the president wants a particular policy and congress will not go along. then the president does it anyway. for example, president obama
repeatedly tried to get a dreamer legislation through congress that would have had to do with immigration -- removal of immigration restrictions for the children of illegal migrants into the country. congress would not go along. then after an election, he simply did this by executive order. president trump came to congress a number of times wanting to get money for his huge, beautiful wall on the border with mexico. congress said we will not go along with that. he decided he would build it using funds from here and there and tucked into his back pocket anyway. why doesn't congress stand up for its powers?
those are fundamental powers vested in congress, not the president. why doesn't congress stand up for itself? sen. lee: because this is a feature not a bug from the subjective viewpoint of many members of congress. they are not inclined to say that publicly. many might not articulate that concept to themselves. at the end of the day it works , for many members of congress to be able to have someone else to demagogue, and someone else to blame to embrace a president whose views they agree with and condemn and belittle a president whose views they disagree with. it's interesting you mentioned those two examples. i've had this very argument with president obama and with president trump on the topics you are describing. i disagreed with both of them about those issues. there was nothing about the fact
that president trump belongs to my political party that saw me to see that when differently. i believe the national emergencies act invoked by president trump in the case of the border wall is itself so broad as to be staggering. interesting enough, the national emergencies act is so broad it might well be read to give him the power. i still voted against him on it, he was unhappy with me many of , his supporters were not happy about that. as i explained to him and the voters of utah and anyone else who would listen, the delegation to the presidency in that instance was so broad that i think it is bad. i cannot look at a situation in which congress was specifically asked to appropriate large sums of money, refused to do so, and any act of congress would have
given power to the president to come along after and say i disagree with that, i am going to re-appropriate already appropriated funds to this purpose. that is not right. it cost me a fair amount of condemnation and scorn in my party, just as my opposition to president obama's actions had , too. i think it is part of the oath we take as members of congress to protect the constitution, that compels us to do that regardless of what our political views are. there is no clause providing an out where you happen to agree or disagree with a particular policy position of a president. that does not change the constitutional mandate in question. michael: are there democratic senators and members of the house he will take the same position vis-a-vis president biden that you sometimes did with trump? sen. lee: yes.
the short answer is i think so. we are still early enough in the biden administration that it is difficult to predict exactly who will land where. i have had some allies on these issues over the years. it breaks down differently depending on the issue set in question. one of this areas where it manifests itself, and where i have been a broken record repeating this is in war powers. federalist 69, hamilton explains there is a good reason why we did not follow the english model and leave the power to go to war with the executives. the king had that power. we went in a different direction, saying that has to belong to congress. why? going to war is fraught with moral, economic and other kinds of peril.
so much so you really needed to be vested in the branch of government most accountable to the people at the most regular intervals. i've had a number of allies on this. bipartisan allies over the years going back to the obama administration. i think they will continue to be allies. bernie sanders and i don't agree on everything. he has identified himself as a socialist. he's from vermont. i am not known by either of those titles, but we agree war power is sacred and should not be thrown around lightly or delegated to the executive branch. he and i and chris murphy and tim kaine and a number of others have teamed up over the years to push back on unconstitutional, unauthorized wars. including the fact we have been involved in a civil war in yemen for the last six years without any authorization for the use of military force or declaration of
war. that's not ok. that is one area we have bipartisan agreement. michael: the majorities of both houses, when the republicans controlled the senate, both voted to discontinue the war in yemen. president trump vetoed that bill. kept it going. sen. lee: this was the first indication of the war powers act in its history. i had a lot of republicans, including in congress and the white house mad at me over that one, we were on the side of the angels there. it looks like president biden will get us out of that work. that's a good thing. michael: i read in the papers there is an effort to repeal the -- there are more than two.
i didn't realize one goes back , to 1957, authorizations for the use of military force in the middle east that are open-ended and completely obsolete and have been used to justify military interventions in matters that have nothing to do with their original post 9/11 purposes. i'm curious what you think will happen and also, will this be appointed bipartisanship, or will this be one more thing where the parties end up at loggerheads with each other? sen. lee: there is a growing bipartisan consensus on this one. people are tired of wars that last for decades. i have a daughter who was an infant when 9/11 happened. only a few months old. she is halfway through college
now. these wars in iraq and afghanistan have been going on her entire life. this helped us produce a generation of americans that sees that enough is enough and we have to get out of this practice. you are right. we have open-ended and pre-existing authorizations for the use of military force that have piled up. that, coupled with some crafty lawyering from the department of defense and other lawyers within the executive branch and republican and democratic administrations alike, led to an almost military nihilism when it comes to any limits on that power. they will vacillate between saying this isn't war, this isn't an armed conflict and
therefore does not require any authorization for the use of military force. on the other hand, saying this or that authorization from however many decades ago justifies it, even when the countries are not named. they will identify some sequence of logical connections that in their minds justifies it. people are not buying it anymore and that is why i think we are going to win. michael: the war in libya is a particularly clear example of that. i remember reading the department of justice opinion justifying that war, which was not authorized by congress. president obama spent months negotiating with the europeans. over whether -- they thought he should go but he did not bother going to the body the constitution says he should have. the opinion came down. i remember sitting there. it was april 1 that it came down. as i read it i thought, what an appropriate date for this
because it pays no attention whatsoever to the history or meaning of the constitution. it was all exciting precedent. every time a president starts a new war, they just add that as a new precedent as justification for the next one. it's not just wars, it's foreign policy in general. i'm curious what your view is on the iranian -- they call it the joint -- the jcpoa. they call it that instead of a treaty. it looked like a treaty because it commits the united states to not enforcing various laws passed by congress that impose sanctions on iran in exchange for future promises from iran.
that looks a lot like a treaty. why didn't that have to go to the senate for treaty ratification? sen. lee: it did. it should have but they decided not to do it. at the time i was on the senate armed services committee. secretary of state john kerry testified about the jcpoa. i asked that very question. why haven't you submitted this as a treaty? it fits all the hallmark characteristics of a treaty. far from being a mere policy statement or an aspirational -- this thing materially altered the legal obligations of the united states relative to other nations and relative to our own system of laws. our own laws passed by congress. that is the kind of thing that should not take effect as an international agreement without ratification by the senate, two
thirds of the senate. i asked that very question. his response was stunning. he said, well, this involves more parties than just the united states and iran. it involves other countries. in addition to that, it involves other entities that are not sovereign nations but are organizations. it just so happened i had the department -- the state department's definition of a treaty. from their own website. i read it to him. it clearly encompassed everything he just described. there was nothing about the fact that involved multiple countries or nonsovereign organizations. they were parties that took it out of the definition of a treaty.
the definition expressly encompasses those things. he backed off that and later said i think we were afraid congress would not ratify it. that is the whole point. if you are afraid they would not ratify, you cannot just for that reason assume it has been ratified and treat it as if it were a treaty, because it is not. it is part of how messed up this dynamic is. i would add to that it is part of how our presidential politics have become so emotionally charged. it was never intended to be this emotionally charged. it never would be this emotionally charged. they might be intense in other ways. if we were following the constitution and allowing for the power to be distributed in the manner the constitution requires, setting aside what the founding fathers subjectively intended or how they imagined it to work or how it previously worked, if you just follow the
words as they still read today, according to the common meaning today, you would not have such an emotional fervor behind it. because power would be distributed. we would no longer be looking to the presidency as if it were a king. it reminds me of the old testament, the words of first samuel chapter 8, talking about the problems of having a king. we don't want those problems. we are not supposed to have them in the united states. that is why we have a constitution. we need to follow it for it to work. michael: we have talked about war and foreign affairs. there was a huge domestic side of all this we cannot even scratch the surface of. since you are the ranking member of the joint economic committee, i wanted to hear your thoughts about the budget situation. my copy of the constitution says
in two different places that congress has control over appropriations, the power of the purse. yet all this seems to be driven by presidential authority. how does our budget situation fit in your view of the constitutional vision? sen. lee: it certainly departs from it in many material ways. the money the federal government itself spends still does have to be appropriated by congress, and it is. but when congress acts as if it were an afterthought and congress will in many cases work both houses of congress under the control of the same political party as the
president, sometimes you will have the muscles of congress start to atrophy. there will be an almost blind deference, and deliberate willful delay to act on anything or decide appropriations questions until such time as the president directs. that is not how it is supposed to work. there are other things that are related to budget type issues, including the fact that the federal reserve has as much influence as it does is effectively, in many ways the financier of the federal government. not directly but indirectly it ends of having many of those impacts. those were all things that certainly would have surprised the founding fathers. with respect to this issue of separation of powers generally,
it is one thing i think james madison did not properly foresee. he was prescient in his ability to foresee various pitfalls and advantages of the constitutional system. he did believe power would be made to counteract power and the three branches would have a way of sort of balancing each other out. it is not that all three branches are equal in the sense they are identical. they are different. the legislative power i think is the most dangerous, especially the way they set it up. his point was you are not going to see too much of an accretion of power in one branch of the expense of the other two because the other two will see that happening and respond. the part he did not foresee was
the rise of the career politician who, in pursuit of perpetual reelection would be inclined to say, yeah, i know the executive branch is exercising too much power and we are asked to delegate more of that power here but i'm willing to do that because it will make it easier for me to get reelected. that is a problem. it is one we have to confront. michael: i was about to start throwing you some questions we have gotten from the audience. what you just have been addressing is the first question from an audience member named brian who writes, "the founders believed congress would jealously guard its constitutional powers but has allowed or encouraged over many years the executive branch to progressively take more power." now he gets to the heart of it. senator lee, you will be on the hot seat for the question.
"how can congress best reassert itself as a meaningful check on executive power?" sen. lee: first and foremost, when these things come to the attention of members of the public, when voters start to express concern about how much power we have delegated away that will start to make a difference. as i sometimes explain, it's an unfortunate reality we don't have large grassroots political movements that spring up spontaneously calling for a restoration of federalism and a separation of powers. i wish that there were. if there ever is one, i will be part of that party. in the absence of that it can be helpful for people to take bite sized attempts to restore some of these things. bite sized reforms. in the area of regulatory
policy, when the modern administrative regulatory system was starting to develop under fdr, james landis, harvard law professor who was part of the fdr brain trust designed the system. he explained to president roosevelt as a matter of proper form what we would today call major rules, significant regulations put up by an executive branch agency before they can take effect should be passed into law by congress. fdr did not quite get to that part of it. congress adopted a cheap imitation of that known is the legislative veto. congress would outsource certain types of rulemaking, but then say if an agency or commission or department makes a regulation we don't like then a simple concurrent resolution of
congress can undo it. legislative vetoes gained popularity until we had hundreds of them. until the supreme court concluded they were unconstitutional and violated article 1, section 7's presentment clause in 1983 -- resentment clause in 1983. many believed congress would stop this delegation of power. stop delegating the lawmaking power to be branch agencies. that did not happen. it got worse. there are legislative proposals designed to deal with these issues. one is the reins act. regulations from the executive in need of scrutiny. for any major role, they can't take effect until both houses have affirmatively enacted into law and submitted to the president for signature or veto.
it's a way of restoring benefits of the legislative veto but in a way that is not unconstitutional. i have a similar bill for trade policy. in the form of a bill called the global trade accountability act. it identifies a dozen areas where since the late 20's and early 30's congress delegated to the president or other branch offices the power to start a trade war. i don't think those should be self-executing. they should require an act of congress submitted to the president for signature or veto. it is hard to imagine a world in which these legislative proposals are part of the vernacular of everyday americans. i refuse to believe they can't be. the american people are not dumb. they know something is wrong. little by little, efforts like
these will gain momentum. michael: unfortunately, our time is up. i would like to point out to the audience something i find really refreshing and interesting. we have been talking about the constitution and how to restore some of the guardrails and divisions of power the constitution provides for. did you notice what he did not say? he did not say take it to the supreme court. senator lee believes, and i'm interpreting from that -- must believe our representative government is as responsible for enforcing the united states constitution as the courts. maybe in some ways more so. it is good to hear that. one of the big problems is we tended to outsource constitutionalism to the supreme court.
it does not belong just to the supreme court. it belongs to the senate and the house of representatives into we the people. thank you very much for a very engaging discussion, senator lee. thank all of you for joining us today. i hope you will tune back in on april 15 for a discussion. thank you for your attendance and attention. >> sees binge washington journal. every day we take your calls live on the air and we discussed policy issues that impact you. coming up thursday morning, we will discuss state election laws and changes to george's voting law.
also, the expansion of subsidies under the affordable care act. watch washington journal live at 7:00 eastern thursday morning, and be sure to join the discussion with their phone calls, facebook comments, texts, and tweets. >> the supreme court heard oral argument today, consolidated case challenging whether the collegiate sports associations limits on providing compensation and benefits violate federal antitrust law. under existing law, colleges and universities can cover a student athletes expenses related to education, including tuition, fees, and room and board. they will also allow academic awards and study abroad. the justices now have